Judge James C. Chalfant, Case 22STCP00253 2022-09-15 Tentative Ruling

Petitioner Peter Tagliere (“Tagliere”) applies for a writ of mandate to compel the Director of the Emergency Medical Services Authority (“EMSA”) to set aside its October 25, 2021 decision to revoke his probationary Emergency Medical Technician-Paramedic license (“EMT-P”).

The court has read and considered the moving papers, opposition, and reply, and renders the following decision.

Petitioner Tagliere file the Petition for administrative mandamus on January 24, 2022. The Petition alleges in pertinent part as follows.

Tagliere has maintained an EMP-T license since July 23, 2003. On October 22, 2014, EMSA placed Tagliere’s license on probation for three years after it found that he reacted disproportionately when a patient spit in his partner’s mouth.

On July 9, 2016, EMSA served Tagliere with an Allegation and Petition to Revoke License (“Accusation”) based on the claim that he committed gross negligence and incompetence and violated EMSA rules during a patient interaction on June 26, 2015. Tagliere challenged the Accusation and requested an administrative hearing.

On December 8, 2016, an Administrative Law Judge (“ALJ”) of the Office of Administrative Hearings (“OAH”) held a hearing (“2016 Hearing”).

On February 8, 2017, the ALJ issued a Proposed Decision (“2017 Proposed Decision”) that EMSA did not meet its burden to establish that Tagliere was grossly negligent or incompetent or violated any provisions of the Health and Safety Code. On June 29, 2017, the Director issued a Decision and Order (“2017 Decision”) in which he found cause to revoke Tagliere’s license based on a recording of a 911 call not considered at the hearing. The decision became effective on July 29, 2017.

Tagliere filed a petition for writ of administrative mandate (“2017 Petition”) to set aside the 2017 Decision. On April 17, 2019, Dept. 82 (Hon. Mary Stroebel) granted the 201 Petition and found that the findings of gross negligence and incompetence were not supported by the weight of the evidence without expert testimony.

Pursuant to Judge Strobel’s decision, EMSA reinstated Tagliere’s EMP-T license on May 9, 2019. On February 19, 2020, EMSA remanded the matter to the ALJ for a hearing consistent with Judge Strobel’s ruling.

On July 8, 2021, the ALJ heard expert testimony from both sides (“2021 Hearing”) on the standard of care to determine whether Tagliere had been grossly negligent or incompetent. The ALJ also admitted a 911 call audio relied upon by EMSA’s expert. EMSA’s expert also reviewed the administrative record and made determinations contrary to the 2017 Proposed Decision’s factual findings, whereas Tagliere’ expert relied on those findings.

On October 21, 2021, the ALJ issued her Proposed Decision (“2021 Proposed Decision”), which found that Tagliere acted with gross negligence and incompetence. She therefore recommended revoking Tagliere’s license.

On October 25, 2021, EMSA issued a Decision (“2021 Decision”) adopting the 2021 Proposed Decision and revoking Tagliere’s license.

Petitioner Tagliere contends that EMSA’s expert relied on facts not in evidence, unauthenticated evidence, and his own understanding of events that contradicted the ALJ’s findings in the 2017 Proposed Decision. The 911 call audio he relied upon was never authenticated and admitted only as administrative hearsay. The ALJ also allowed EMSA to admit a 911 transcript over Tagliere’s objection dispute a lack of authentication.

Tagliere seeks (1) a writ of administrative mandate to compel EMSA to set aside the 2021 Decision and reinstate his license, (2) attorney’s fees and costs, and (3) damages according to proof.

On January 27, 2022, Tagliere served the Director with the Petition and Summons. Tagliere served him again on January 28, 2022 by substitute service, effective February 7, 2022.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c).

Tagliere asserts that the court should exercise its independent review of the evidence for the revocation of a probationary license noting that Dept. 82 (Hon. Mary Stroebel) did so when the matter was before her. AR 583. Pet. Op. Br. at 3-4.

Judge Strobel’s decision relied on two appellate cases: Sandarg v. Dental Bd. of California (“Sandarg”) (2010), 184 Cal.App.4th 1434, 1440; Lone Star Sec. & Video, Inc. v. Bureau of Sec. and Investigative Services (“Lone Star”) (2012), 209 Cal.App.4th 445, 452. In both cases, the petitioner had been placed on probation and the court discussed the familiar standard of independent review for a person seeking to restore a license because it involves the right to practice one’s profession which is a fundamental vested right. Sandarg, supra, 184 Cal.App.4th at 1440-41; Lone Star, supra, 209 Cal.App.4th at 452-53.

EMSA argues that revocation of a probationary license is analogous to denial of a license, which does not affect a vested right, citing Mann v. Department of Motor Vehicles, (1999) 76 Cal.App.4^th 312, 320. Opp. at 9-10. Actually, Mann does not distinguish between an existing license and a probationary one. Mann expressly states that “[o]nce an agency has exercised its expertise and issued a license, the agency’s subsequent revocation of that license generally calls for an independent review of the facts, because the revocation or suspension affects a vested right.” 76 Cal.App.4^th at 320.

EMSA’s citation of employment cases do not aid it. See Opp. at 9-10. Probationary employees such as probationary teachers have only statutory rights and no vested right in employment. Lee v. Board of Civil Service Comrs, (1990) 221 Cal.App.3d 103, 108; Turner v. Board of Trustees, (1976), 16 Cal.3d 818, 824-25 (right of probationary teacher to be rehired for next school year is not vested). Tagliere’s license is not employment with a particular employer; it enables him to practice his profession which is a right broader and more fundamental than employment.

EMSA cannot dispute that a probationary license is still a vested license. In contrast, a restricted license is an indication to the holder that the rights granted thereunder are neither vested nor permanent. Apollo Estates, Inc. v. Department of Real Estate (1985), 174 Cal.App.3d 625, 635-36 (since licensure right was not vested, the standard for review was substantial evidence). Tagliere’s license was on probation, but not restricted. Tagliere’s right to practice his profession is also a fundamental right and he is entitled to an independent review of the facts. The court’s review of Tagliere’s license revocation is independent judgment. Sandarg, supra, 184 Cal.App.4th at 1440-41; Lone Star, supra, 209 Cal.App.4th at 452-53.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Id. at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 515.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.” Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

An “emergency” is a condition or situation in which an individual has a need for immediate medical attention. H&S Code §1797.70.

Local EMS agencies are charged with the development or approval, implementation and enforcement of policies for medical control, medical accountability, and an EMSQIP of the paramedic services, including (1) treatment and triage protocols; (2) patient care record and reporting requirements; (3) medical care audit system; and (4) role and responsibility of the base hospital and paramedic service provider. 22 CCR §110148(c).

Training courses for paramedics shall include obstetrical patient management, including a detailed assessment of the patient. 22 CCR §110155(c)(12)(A).

Los Angeles Ref. No. 808 (“Policy 808”) explains the circumstances under which paramedics must make base hospital contact and transport to an appropriate hospital. AR 733. Paramedics must make base hospital contact for medical direction and/or patient destination on all patients with (1) signs of shock, (2) cardiopulmonary arrest, (3) chest pain or discomfort, (4) shortness of breath, (5) altered level of consciousness, (6) abdominal pain in a pregnant or possibly pregnant patient, (7) childbirth or labor, or (8) lack of consciousness. AR 734-35. Paramedic personnel shall transport all patients with (1) abdominal pain or (2) abnormal vaginal bleeding. AR 735.

When taking disciplinary action against an EMT, gross negligence, incompetence, or conviction of any crime substantially related to the qualifications, functions, and duties of prehospital personnel shall be considered evidence of a threat to the public health and safety and may result in the denial, suspension, or revocation of a certificate or license issued under the Health and Safety Code (“H&S Code”), or in the placement of a certificate or license holder on probation. H&S Code §1798.200(c)(2), (4), (7).

The definitions in the EMSA Recommended Guidelines for Disciplinary Orders and Conditions of Probation (“EMSA Guidelines”) are incorporated in 22 CCR section 100173(c). “Incompetence” is the lack of possession of that degree of knowledge, skill, and ability ordinarily possessed and exercised by a certified paramedic. AR 261. “Gross negligence” is an extreme departure from the standard of care which under similar circumstances would have ordinarily been exercised by a reasonably prudent person trained and acting in a similar capacity while engaged in the performance of his or her duties if confronted with a similar circumstance. AR 172, 261.

Within 100 days of receipt by the agency of the ALJ’s proposed decision, the agency may (1) adopt the proposed decision in its entirety, (2) reduce or otherwise mitigate the proposed penalty and adopt the balance of the proposed decision, (3) make technical or other minor changes in the proposed decision and adopt it as the decision, (4) reject the proposed decision and refer the case to the same administrative law judge if reasonably available, otherwise to another administrative law judge, to take additional evidence, or (5) reject the proposed decision and decide the case upon the record, including the transcript, or upon an agreed statement of the parties, with or without taking additional evidence. Government Code (“Govt. Code”) §11517(c)(2).

If the agency chooses to decide the case upon the record, it must (1) make a copy of the record available to all parties (Govt. Code §11517(c)(2)(E)(i)), (2) not decide any case without affording the parties the opportunity to present either oral or written argument before the agency itself (Govt. Code §11517(c)(2)(E)(ii)), and (3) issue its final decision not later than 100 days after rejection of the proposed decision (Govt. Code §11517(c)(2)(E)(iv)).

Tagliere had been a firefighter-paramedic with the Los Angeles City Fire Department (“LAFD”) since 2004. AR 715. EMSA issued him an EMT-P license in July 2003. AR 855. He received a mixture of satisfactory and excellent ratings in his 2006, 2009, and 2010 performance evaluations, mostly satisfactory ratings with some excellent in his 2011 evaluation, satisfactory ratings in every category in his 2012 evaluation, and excellent ratings in almost every category in his 2016 evaluation. AR 1070, 1074, 1079, 1083, 1087. Affidavits from multiple colleagues assert that Tagliere is familiar with EMS procedures, performs his duties well, and interacts well with co-workers and members of the public. AR 1098-99, 1101-02, 1104, 1106, 1108, 1111.

On June 29, 2013, Tagliere took an inebriated and combative arrestee/patient to the hospital and the patient spat at Tagliere’s partner Cory Tallion (“Tallion”). AR 780. Spit landed on Tallion’s face and inside his mouth. AR 780. Tallion stepped back from the gurney to gather himself. AR 780. Tagliere warned the patient that he would hit him in the face if the patient spat at him (Tagliere). AR 780. The patient spat at Tagliere, who threw two punches at the patient. AR 780. The first punch hit the patient’s face and the second missed because the patient moved. AR 780.

EMSA revoked Tagliere’s license, but after an administrative hearing his license was reinstated with three years’ probation. AR 785, 855. EMSA’s final decision ordered Tagliere to fully comply with all federal, state, and local laws, statutes, regulations, written policies, protocols, and rules governing the practice of medical care as a paramedic. AR 786. If he did not, EMSA could initiate an action to terminate his probation and suspend or revoke his license. AR 787.

On June 29, 2015, Jennifer Huerta (“Huerta”) filed a complaint with LAFP about mistreatment she suffered when she sought emergency relief from LAFD personnel on June 26. AR 668. That night, Huerta began to have abdominal pain and bleeding while only four months pregnant. AR 668. When he was approached for help, Tagliere did not respond to the emergency or perform his greatest effort to help her and was negligent, inefficient, or indifferent in providing care. AR 668.

Based on this allegation, LAFD investigated and released a report on May 5, 2016. AR 674. Relevant interview information is as follows.

On June 26, 2015, pregnant Huerta was eating dinner at a restaurant with her husband Eric Lindor (“Lindor”) when her water broke, and she began bleeding. AR 689. Lindor brought her to the car and started to drive to the nearest hospital while calling 911. AR 689. Due to their proximity to Fire Station 60 (the “Station”), the operator advised them to stop there. AR 689.

The first LAFD member they saw – later identified as Tagliere -- told them that they were blocking LAFD apparatus and needed to leave. AR 689. Lindor told Tagliere that he called 911 because his wife was bleeding and the 911 operator directed them to the Station. AR 689. Huerta interrupted to say the baby was coming. AR 689. Tagliere looked in the vehicle and saw that Huerta was bleeding and walked away. AR 689. He told them that they needed to leave and “we do not deliver babies here”. AR 689.

Two paramedics arrived with the ambulance and were initially going to take Huerta, but Tagliere told them that she would not get there any faster if the paramedics took her than if Lindor drove her himself. AR 689-90. This prompted the paramedics to change their minds and refuse to take her. AR 690.

When LAFD staff told the couple they do not deliver babies, it felt like they were trying to “sweep” them away. AR 689. After five to ten minutes of pleading for help, the couple understood they would receive no help and drove off to the hospital. AR 690. None of the LAFD members performed a medical assessment. AR 689, 691.

The trip to the hospital took 10-20 minutes, the baby was delivered stillborn en route, and Huerta was hospitalized for two days. AR 690.

Christopher Beaty (“Beaty”) is one of the paramedics who arrived in the ambulance during Tagliere’s and Lindor’s conversation. AR 702. It was the first time he worked with Tagliere. AR 703. He listened to a 911 call but was unable to verify at first that his voice was on the recording, but he later conceded that it had to be his voice. AR 702-03.

As he arrived, Tagliere was talking to Lindor, but Beaty was too far to hear what either said. AR 702. Beaty assisted Paramedic Kuniyuki Kasahara (“Kasahara”) with backing his rescue unit into quarters and then creating a still alarm for a pregnant patient. AR 702. Beaty did not hear the exchange between Tagliere and Lindor. AR 703. Beaty neither told Lindor to take Huerta to the hospital nor heard Tagliere or Kasahara tell Lindor to do so. AR 702. Beaty never saw Huerta. AR 703.

He planned to take Huerta to the hospital and said he would do so. AR 703. When he went to fill out the ePCR, he turned and saw Lindor drive away yelling “I can’t believe that you’re not going to treat my wife.” AR 703. Beaty knew this would become the basis for a complaint. AR 703.

On June 26, 2015, Lindor was eating dinner at a restaurant with Huerta, who was four months pregnant, when her water broke. AR 758. Lindor brought her to the car and started to drive to the nearest hospital, but he called 911 due to her increased labor pain and the distance from the hospital. AR 758. When the dispatcher advised him to pull over and give his location, Lindor saw the Station across the street. AR 758. The dispatcher advised him to go there. AR 758.

Lindor saw Tagliere exiting his LAFD pickup truck and approached him for help. AR 758. Tagliere responded that he could not help – this was a fire station -- and Lindor needed to get his wife to a hospital. AR 758. As he said that, a paramedic ambulance arrived at the Station. AR 758. Lindor hurried to the paramedics and asked for their help, informing them that Huerta was bleeding and that the baby was coming very prematurely. AR 758. One of the paramedics said that they would help and take his wife to the hospital, but Tagliere stopped them and said that Lindor was wasting time and needed to take her immediately. AR 758. Lindor felt that they were not going to help him. AR 758.

Tagliere worked at a different fire station that morning before LAFD detailed him to the Station. AR 714. He arrived at the Station in his LAFD truck – a “plug buggy” – and was unsure if anyone was there. AR 714. While sitting in the plug buggy, he heard a horn and saw Lindor drive up to the Station. AR 714. When Tagliere approached to see what was wrong, Lindor informed him that Huerta was pregnant. AR 714.

Tagliere could not remember the exact words he used, but he tried to explain to Lindor that he did not work at the Station and no ambulances were there. AR 714. Tagliere explained that Lindor needed to get his wife to a hospital and the most Tagliere could do would be call an ambulance. AR 771. Alternatively, Lindor could take Huerta himself. AR 714. Tagliere only proposed this because he did not know if anyone else was at the Station and time was short. AR 714, 716.

He did not try to make it sound like he did not want to take them, but Lindor seemed to be on the offensive. AR 714, 771. Tagliere tried to keep the situation under control, though in hindsight finding a way to make a still alarm would have been better. AR 714. Tagliere had no means of creating a still alarm; his cell phone was in the plug buggy. AR 714-15. He never saw, assessed, or spoke to Huerta, who remained in Lindor’s backseat throughout. AR 716. Tagliere stood next to Lindor on the driver’s side. AR 716, 719, 770.

When the paramedics arrived in an ambulance, Tagliere told one of them to call a still alarm and walked to the plug buggy to get his equipment as the paramedic talked to Lindor. AR 715, 770. When Tagliere turned back around, Lindor had driven away. AR 715, 770.

LAFD found that the 911 recording proved that Tagliere told Lindor to drive Huerta to the hospital instead of offering emergency services. AR 677. Both Tagliere and Beaty confirmed this. AR 677. All three LAFD members also admitted that they never assessed Huerta, despite one being required in those circumstances. AR 678-79.

The report summarized the 911 call, which confirmed that Lindor told Tagliere that Huerta’s water broke and that he asked Tagliere multiple time to take her to the hospital. AR 681-82. Tagliere twice responded: “Take her to the hospital”. AR 682. Once he stated that it would be faster that way, which Lindor denied. AR 682. Beaty confirmed that the third voice on the recording saying that he could take Huerta must be his own. AR 677, 682.

The report concluded that Tagliere violated LAFD Rules and Regulations (1) section 10(a): respond to all emergencies and exert greatest efforts under circumstances without negligence, inefficiency, or indifference in the performance of duties; (2) section 10(f): be familiar with and obey the rules, regulations, practice, and procedure of LAFD; and (3) section 13(b): be courteous and respectful in contacts with the public. AR 677, 679, 681.

On July 11, 2016, EMSA served Tagliere with the Accusation alleging that he violated H&S Code section 1798.200(c)(2), (4), and (7) by exhibiting gross negligence and incompetence, and by violating Policy 808 during a patient interaction on June 26, 2015. AR 641-42. The Accusation asserted that the moment Tagliere arrived at the Station for work, Lindor and Huerta’s vehicle pulled up. AR 641. Lindor claimed that Huerta was pregnant, had gone into labor, and was bleeding. AR 641. Tagliere failed to assess Huerta and provide care, instead advising Lindor to take her to the hospital. AR 641. Lindor drove to the hospital in his car, and the baby was born a stillborn en route. AR 641.

On July 21, 2016, Tagliere filed a Notice of Defense and requested a hearing. AR 657.

The ALJ held the first hearing on December 8, 2016. AR 918. The ALJ acknowledged that the LAFD investigation report and accompanying interviews were administrative hearsay but admitted them over objection based on administrative hearsay and the fact that the document was certified by a custodian of records. AR 940-41, 983.

Lundor and Huerta have five kids and they were having dinner when Huerta went into premature labor. AR 953, 965. Lindor only knew of Burbank Hospital and started to drive Huerta there, calling 911 on the way. AR 953-54. The dispatcher advised him to drive into the Station that Lindor saw five minutes after leaving the restaurant for help. AR 954-55, 965.

Tagliere approached from his own truck and looked into the passenger seat where Huerta was sitting. AR 955-56. By then she was bleeding, and Lindor asked Tagliere to take Huerta to the hospital so that the kids did not have to see their mom bleed and in labor. AR 957, 965. Tagliere said Lindor was wasting time and had to take her himself. AR 957.

Seconds later, an ambulance arrived, and two paramedics stepped out. AR 957, 970. The one in the passenger seat walked to the driver’s side of Lindor’s car and looked like he would offer help, but Tagliere told Lindor that he was wasting time and that he should take her himself. AR 958, 972. It appeared that Tagliere had authority over the paramedics because they automatically pulled back and neglected to help. AR 959.

Asking for help was the only thing Lindor remembered doing. AR 968. Tagliere never offered to make a still alarm or provide any help, and none of them assessed Huerta. AR 959, 974. In pain, Huerta screamed at Lindor that it was obvious the paramedics would not help and that they should just go. AR 959-60. It took him 30 minutes to drive to the hospital because there was traffic. AR 960. By the time Huerta got to the hospital, she had bled a lot and her blood pressure was low, so the doctors gave her a blood transfusion and adrenaline. AR 962. Huerta delivered the baby at the hospital, but she almost died that night, and Lindor’s daughter was stillborn. AR 960, 962.

Huerta was bleeding by the time she reached the car and left the restaurant. AR 985. Lindor was on the phone with 911. AR 985.

When Lindor arrived at the Station, he approached Tagliere, who was walking off of his truck from the right. AR 985. Lindor explained to Tagliere that 911 had advised him to come to the Station for help because they could get Huerta to the hospital faster than he could. AR 986. Tagliere said that Lindor was wasting his time and had to take her himself. AR 986. After several minutes, the paramedics arrived. AR 986. As she was in a lot of pain and blood was coming, she did not see when the ambulance and the paramedics were at the station. AR 992. One of the paramedics said they could help, but Tagliere said: “[N]o. We can’t do nothing[,] you are wasting time. She needs to go to the hospital.” AR 986.

Tagliere glanced though Huerta’s window and repeated to Lindor that he should take her to the hospital. AR 986. A frustrated Huerta asked Tagliere if he was going to help, saying that her five boys were in the backseat and that Tagliere would help if it was his wife. AR 987. Tagliere repeated that he would not help, so Huerta told Lindor they should go. AR 987. Huerta did not remember what happened after she reached the hospital. AR 986.

Tagliere has treated pregnant patients and delivered two babies while an EMT. 1006. His license was on probation for the 2013 incident, during which he acknowledged his wrongdoing. AR 1019-20.

He is familiar with the concept of still alarms, which is how firefighters and paramedics in the field initiate an incident. AR 1006. From then on, the ambulance or fire engine that saw the incident is dedicated to that incident and will not leave if another incident arises elsewhere. AR 1006. A still alarm only occurs when someone arrives at a fire station or there is no one else to call 911, so it takes priority. AR 1008.

The term “base station contact” refers to a call from a paramedic ambulance to a base hospital, one of several hospitals with specially certified mobile intensive care nurses (“MICNs”). AR 1006-07. Certain calls to paramedic ambulances require that the paramedic make base station contact and call that hospital and speak to that MICN for treatment guidance and feedback. AR 1007.

Standard Field Treatment Protocols, or Standing Treatment Field Protocols (“SFTPs”), are paramedic incidences that require certain forms of treatment but not base station contact. AR 1007. The paramedic needs to tell the hospital that he or she is treating the patient’s condition, the treatment thus far, and estimated time of arrival. AR 1007.

Because a paramedic stationed at the Station left in the early evening due to illness, Tagliere went there to take the remainder of his shift in the plug buggy – a non-emergency pickup truck with no equipment. AR 1008-09. He pulled in about the same time as Lindor’s Suburban and approached the driver’s side of the car. AR 1011. He could see that someone was sitting on the passenger side but did not see her lap or go around to her side. AR 1014-15, 1024.

Lindor told him Huerta was pregnant and needed help. AR 1011. Tagliere responded that there was no ambulance at the Station and that it appeared no one was inside. AR 1013. Lindor could either take Huerta herself or have Tagliere call an ambulance. AR 1013. With the current deployment model and staffing shortages, Tagliere was concerned that it could take 15 minutes to get one. AR 1014.

He did not have what he needed to treat Huerta on site, and his cell phone and radio were in the plug buggy. AR 1014, 1023. Tagliere never said that Lindor was wasting his time by being there. AR 1017. Lindor never told him that Huerta was bleeding or having a miscarriage. AR 1025.

Within 30-40 seconds, ambulance Rescue 60 arrived. AR 1015. Beaty got out to help the ambulance back into the Station and saw Tagliere talk to Lindor. AR 1016. Tagliere told him to create a still alarm, which Beaty did. AR 1016-17. Tagliere then walked back to the plug buggy to get his turnout gear – firefighting pants, jacket, and helmet – in case he would be part of the team taking Huerta to the hospital; wearing it would be mandatory when performing paramedic duties. AR 1017-18.

He believes one of the paramedics went to get the gurney and that Beaty had an electronic patient care report (“ePCR”) for Huerta. AR 1018. The next thing Tagliere saw was Lindor drive away. AR 1019.

Tagliere never told the paramedics not to assist Lindor and Huerta or interfered with them doing so. AR 1019. The plug buggy does have a light bar and siren, but he has never seen anyone use it. AR 1026. Nothing kept Tagliere from going around to Huerta’s side of the Suburban, opening the door, and assessing her condition. AR 1026.

As of the 2016 Hearing, Beaty had been with LAFD for a little over nine years. AR 1039.

Beaty was in the passenger side of the ambulance with Kasahara driving as they returned from a hospital and saw Lindor and Tagliere talking in front of their vehicles. AR 1041. Beaty rolled down the window to ask Tagliere what happened. AR 1041. Tagliere responded that they had a pregnant patient and needed to put on a still alarm. AR 1041. His body language and voice did not signal to Beaty a heightened sense of urgency. AR 1048.

Beaty never spoke to Lindor or saw anything more than a shadow in the passenger seat. AR 1042. Beaty exited the vehicle to back the rig in. AR 1043. Either he or Kasahara raised the still alarm before Beaty went to the passenger side of the ambulance to grab the ePCR computer. AR 1043. No one told Lindor or Huerta that they were getting the gurney or other equipment needed to help her. AR 1053.

Lindor drove away, saying that he could not believe Tagliere and the paramedics were not going to help his wife. AR 1053.

On February 8, 2017, the ALJ issued a Proposed Decision to dismiss the action against Tagliere. AR 860. The ALJ found that Lindor pulled up to the Station about the same time Tagliere pulled up in his plug buggy. AR 856. Lindor informed Tagliere that Huerta was pregnant and had gone into labor. AR 856. Tagliere did not assess Huerta or provide care and instead offered to call an ambulance unless Lindor wanted to drive Huerta to the hospital himself. AR 856. EMSA failed to establish through clear and convincing evidence that Tagliere said that LAFD does not deliver babies at the Station or that he knew Huerta was bleeding. AR 856.

Thirty to forty seconds into the conversation, the paramedics arrived but did not provide care or examine Huerta even after they learned of Huerta’s condition and Lindor’s pleas for help. AR 856. While they did trigger a still alarm, none of the LAFD employees told Lindor and Huerta that they would care for Huerta before getting the ePCR or Tagliere’s equipment. AR 856. Instead, Tagliere walked away to retrieve equipment from his plug buggy and Beaty went to get an ePCR. AR 856. Lindor drove off yelling how he could not believe they would not help his wife. AR 857. Lindor reasonably believed that the LAFD would not provide urgently needed care. AR 857. The baby was stillborn during transport. AR 857.

EMSA’s investigation determined that Tagliere demonstrated gross negligence and incompetence and violated local protocols and the terms of his probation. AR 857. Meanwhile, Tagliere claimed he did not have the equipment he needed to render aid, that he acted reasonably by offering to drive Huerta to the hospital, and that he planned to care for Huerta once the ambulance arrived. AR 857.

H&S Code section 1798.200 lists gross negligence, incompetence, and violation or conspiracy thereto among the reasons for suspension or revocation of a license. AR 859. These actions are also grounds to terminate a license probation and suspend or revoke the license. AR 860. The ALJ found that EMSA provided no testimony about paramedicine to establish that Tagliere’s actions deviated from the standard of care. AR 858. Without it, there was insufficient evidence to demonstrate gross negligence or incompetence. AR 858. As to violation of EMSA rules, (1) EMSA did not provide evidence that it had adopted Policy 808 and (2) Policy 808 is vague, and no testimony was presented how it applied to Tagliere’s actions. AR 858. For both reasons, EMSA also failed to demonstrate violation of the terms of Tagliere’s probation. AR 858.

There was no cause to suspend or revoke Tagliere’s license because of insufficient evidence of gross negligence, incompetence, or violation of any laws. AR 860. The 2017 Proposed Decision therefore recommended dismissal of the Accusation. AR 860.

On June 29, 2017, after Tagliere submitted additional written argument, EMSA issued a decision revoking his paramedic license. AR 911, 917. EMSA considered all evidence, including Tagliere’s additional written argument, the 2016 Hearing transcript, the Accusation, the evidence submitted at the hearing, the ALJ’s Proposed Decision, and the original recording of Lindor’s 911 call. AR 912.

The 911 call corroborated the 2017 Proposed Decision’s findings that Tagliere did not assess or provide care to Huerta and told Lindor that he himself could drive her to the hospital. AR 912-914. It also confirmed that Tagliere knew that Huerta was pregnant and that her water had broken. AR 914.

EMSA found no evidence that Tagliere told Huerta or Lindor that Tagliere would transport her to the hospital or arrange for transportation. AR 914. EMSA found that Tagliere’s actions – (1) refusal to provide care to a patient with an emergency, (2) refusal to transport or offer transportation to patient once requested, and (3) causing a patient to believe he would not provide medical care – constituted prima facie evidence of gross negligence and incompetence. AR 914-915. A licensee has a basic duty to assess a patient with an emergent condition, provide appropriate and competent pre-hospital medical care based on that assessment, and provide medical transportation to a patient with an emergent condition. AR 915.

Tagliere did none of these things after Lindor told him Huerta’s water broke, despite the fact that he should have known that was part of his duty. AR 915. Any excuse that he did not have the proper equipment was false after the ambulance arrived. AR 915. Tagliere did not tell Lindor or Huerta that he would provide care or transport them and that they needed to wait. AR 915. He stated that they should transport themselves to the hospital despite his knowledge that Huerta had a serious, emergent medical condition. AR 915. In fact, Huerta went to the emergency room and needed blood transfusions for bleeding associated with a stillbirth. AR 915-16.

This evidence was sufficient to find gross negligence and incompetence and violation of H&S Code section 1798.200(c). AR 916. License discipline is a method of protecting the public health and safety. AR 916. Tagliere’s actions prove that he poses a risk to both, especially two years after placement on probation for physical abuse of a patient. AR 916. EMSA therefore revoked Tagliere’s license, effective July 29, 2017. AR 917. Per Govt. Code section 11522, Tagliere was advised that he could reapply a year later and provide evidence to support his petition for reinstatement. AR 916-17.

Tagliere filed a petition for writ of administrative mandate. On February 14, 2019, Dept. 82 (Hon. Mary Stroebel) granted the Petition. AR 575, 578, 587. Judge Strobel addressed the standard of review, as EMSA asserted that a probationary paramedic licensee has no vested fundamental right and is therefore not entitled to independent judgment. AR 583. The court disagreed, finding that case law supports that the independent judgment test applies to the revocation of a professional licensee's probation. AR 583.

EMSA was not required to explain why it rejected the ALJ’s Proposed Decision. AR 586. Govt. Code section 11517(c)(2)(E) permits an agency to decide the case upon the record itself provided that it gives the parties the opportunity to present either oral or written argument. AR 586. EMSA did so, and the statute does not require the agency the inform the parties of the basis for rejecting the proposed decision. AR 586.

As to the allegation of gross negligence and incompetence, Tagliere asserted that EMSA presented no expert testimony on the standard of care for paramedics. AR 584. Most women in labor do not require an ambulance, so it is not obvious what Tagliere should have done. AR 584. Tagliere conceded that it was negligent to not (1) assess a patient with an emergent medical condition that requests help; (2) offer to provide appropriate pre-hospital care based on that assessment; and (3) provide medical transportation to such patients. AR 585. However, the question was whether he was grossly negligent or incompetent. AR 585. This requires assessment of the relevant circumstances. AR 585. While Tagliere did not fulfill his duty to assess Huerta himself, he notified the paramedics who arrived on the scene seconds later to initiate the assessment. AR 579, 585. Determining whether that was gross negligence or incompetence requires expert testimony about the standard of care. AR 585. Without it, the weight of evidence did not support a finding of either. AR 585.

As for admission of the 911 call recording, EMSA did not admit the recording into evidence or notify Tagliere of its certification but relied upon it. AR 586. Because the court finds the decision invalid for lack of expert testimony, it did not need to decide whether this consideration prejudiced Tagliere. AR 587.

Judge Stroebel ordered EMSA to set aside the 2017 Decision and reconsider the case in light of her ruling. AR 575, 587.

On February 19, 2020, EMSA set aside the 2017 Decision and remanded the case to OAH for a new hearing consistent with the judgment on the 2017 Petition. AR 606.

The OAH held an additional hearing on July 8, 2021. AR 1175. Pertinent testimony from the 2021 Hearing is as follows.

Samuel Stratton (“Stratton”) was EMSA’s expert and former president of a scope of practice committee for the practice of paramedicine and EMTs in California. AR 1200, 1206. The committee evaluates and develops the practice of paramedicine and emergency medical technicians based on new information and research. AR 1206. As with nursing and medicine, paramedicine evolves as research and experience change. AR 1206.

Stratton has been retained as an expert nine times. AR 1206. In preparing for his testimony, he reviewed 552 pages of the administrative record at the time (AR 1-553) and Google maps of the area around Fire Station 60. AR 1206-07. Although he relied on the description of the 991 call from the LAFD investigation report (AR 47-48), he has never met, and has never spoken to, Beaty, Kasahara, and Tagliere. AR 1229-30. Therefore, he does not know what their voices sound like. AR 1230.

The emergency began when Huerta’s water broke – she was mid-term pregnant and Lindor and Huerta left the restaurant in an SUV with their children. AR 1207. Lindor did not know the area well, which had congested traffic at that time, and called 911. AR 1207. He reported that his wife is in great pain. AR 1208. During the call, Lindor saw the 60 and dispatch advised him to ring the front doorbell and get aid. AR 1208. Tagliere pulled in at the same time and approached Lindor, who explained that Heurta was in labor, her membranes had broken, and they needed help. AR 1208. Tagliere replied that there was no ambulance and Lindor should transport Huerta to the hospital himself. AR 1208.

Lindor explained it was an emergency and there was a discussion with Tagliere. AR 1208. During this discussion, two paramedics arrived in an ambulance and asked what was happening. AR 1209. Tagliere did not alert the ambulance that it was an emergency. AR 1209. As a result, instead of immediately pull equipment from the ambulance, Kasahara backed the ambulance into the station. AR 1209, 1233.

At no point did Tagliere look at Huerta, which is standard in a primary assessment. AR 1209. Lindor then became impatient, realizing that Huerta was in pain, now bleeding and having more advanced labor, and care was being denied to her. AR 1209-10. Lindor repeatedly asked for help, for transportation, and in frustration left the scene as he had been told to do by Tagliere. AR 1210.

Huerta had a stillborn birth en route to the hospital. AR 1210. At Saint Joseph’s Hospital, she still needed a blood transfusion of two units, which is an indication that she was seriously ill. AR 1210. The paramedics could not have given Huerta a transfusion; it must be done at a hospital. AR 1210, 1232-33.

The 911 call, the transcript of which was accurate based on what Stratton heard,[1] reflected that Lindor asked for help repeatedly. AR 1211. He explained that Huerta had a lot of pressure, meaning abdominal pain and discomfort. AR 1211. In the call, Lindor said that he ran three lights to get there. AR 1212. He acknowledged that the ambulance arrived, and the call reflects that the ambulance paramedics stood down and begin to back the ambulance in after a discussion with Tagliere. AR 1211. A voice on the 911 call, which Stratton understands was later identified as Tagliere, repeatedly says: “Take her to the hospital.” AR 1212. This is a normal routine to back an ambulance in place, but in an emergency you have to unload the ambulance and take care of the emergency. AR 1212. Lindor was asking for transport and needed help, and it was not forthcoming. AR 1212. He finally took matters into his own hands and tried to do the best for his wife. AR 1212.

Stratton opined that the standard of practice is that when the ambulance arrives at the station and sees an emergency, it does not back up into the station; the paramedics should have unloaded the ambulance to handle the emergency first. AR 1212.

The standard of care for paramedicine is first to ensure scene safety, which was established because Tagliere approached and talked to Lindor. AR 1219. Next, there must be an assessment and there are different levels of assessment. AR 1219. Once the assessment is done, the third step would be to get an ambulance. AR 1219.

The situation was unusual, but Tagliere was on duty, in uniform, and on LAFD property in a clearly marked LAFD plug buggy. AR 1217. The first lesson in paramedic training is that when on duty, you have a duty to treat and evaluate the patient. AR 1217. A paramedic cannot refuse to treat someone. AR 1217. Granted, he did not have equipment in the plug buggy and no gloves, but when you treat someone, you do so with the capabilities at hand. AR 1217.

The minute Lindor said he had an emergency because his wife was in labor, there was a medical emergency until such time as Tagliere concluded otherwise after performing an assessment. AR 1218, 1235-37. Tagliere first should have calmed Lindor down and assessed the patient. AR 1217-18. Tagliere could not get Huerta’s medical history from Lindor; he must get it from the patient unless she is unconscious. AR 1222. Tagliere admitted that he never even looked at Huerta, who was sitting a few feet away from him. AR 1218. He never asked how she was, never checked to see if her airway was open, never looked at her lips or skin to see if she may be hemorrhaging, and never assessed her mental state to see if she was going into shock. AR 1218. All these basic things can be done without equipment, which even an EMT is expected to do, let alone a paramedic level 3 such as Tagliere. AR 1219. Whether Tagleire intended to talk to her is unclear, but if he did so intend his delay in doing so was gross negligence. AR 1232, 1242-43.

After an assessment, the next step would be to get an ambulance, which Tagliere could have done with the radio in his truck. AR 1219, 1222. Tagliere did not even go inside the station to check if anyone was there, and testimony suggested that there was an engine in the station. AR 1219. Transport is the key element in this case and Tagliere’s actions were “way below the standard of care”. AR 1220. An ambulance marked with lights and sirens enables a paramedic to transport sick and injured people through traffic safely. AR 1220. No matter how fast one can drive a private vehicle in 6 p.m. traffic, an ambulance can get there more quickly. AR 1220. Tagliere could have gotten in the plug buggy and said “follow me” with his lights and sirens turned on, which is not uncommon. AR 1220. Policy 808 states that a patient with abdominal pain and vaginal bleeding must be transported. AR 1220, 1244. It also requires the paramedics to make base contact. AR 1245. Additionally, Lindor’s stress made him a distracted driver akin to texting and driving. AR 1221. This put everyone Lindor passed at risk, which means that Tagliere acted even further below the standard of care. AR 1221, 1223.

Even when the ambulance arrived, Tagliere failed to inform his colleagues that they needed to help him. AR 1223. Their arrival did not relieve him of responsibility, and there is no evidence that Tagliere told them to transport Huerta. AR 1226, 1245. The fact that they were investigated for his mistake is further proof that he violated the standard of care. AR 1223.

In sum, Tagliere’s failure to assess the patient who was readily available for visual assessment and a medical history, failure to arrange for transport per Policy 808, instruction to Lindor to drive to the hospital himself (which was extremely below the standard of care), and failure to inform the ambulance crew of the situation are all acts of gross negligence. AR 1225. His failure to arrange for transport also meets the definition of incompetence in not knowing Policy 808. AR 1225.

David Pimentle (“Pimentle”) has held a paramedic license for 34 years. AR 1251. He has not previously been an expert on any case. AR 1289. He reviewed the Skelly packet on the incident – about 50 pages – provided by Tagliere’s counsel for the hearing. AR 1289.

Paramedics have to use some degree of discretion. AR 1286. While the Department of Health Services issues regulations that no paramedic can violate, members must trust their experience, training, and problem-solving skills to resolve the issue at hand. AR 1286. That will be easier for some than others. AR 1286.

Although EMTs are qualified to deliver babies if the mother is in labor, there are certain occasions where advanced life support measures are needed to help stabilize the patient en route to the hospital. AR 1270.

The situation in this case was not normal because Tagliere was not dispatched on a call with a partner and did not have time to think about what he was going to do. AR 1272, 1273-74. In a normal pregnancy situation, two paramedics would receive a call, know the situation’s core elements, get the equipment they need, and arrive at a residence or street. AR 1274. One paramedic would handle initial patient care and assessment while the other gathered additional information from family, completed the documentation, and prepared to make base contact. AR 1274.

In any emergency, scene safety is always the first priority. AR 1272. The paramedic must make sure that he is in a safe environment, which includes assessing how calm the person is and if that person has a weapon. AR 1272. If that person is excited, the EMT should calm him down so he can perform the assessment without hindrance. AR 1273.

The next step is an assessment, which can be short or long. AR 1273. An EMT cannot determine the patient’s best interests without an assessment. AR 1291. A primary assessment is made to determine if the person is conscious and alert, whereas a secondary assessment concerns vital signs, complete medical history, and the current events such as signs and symptoms. AR 1291. The EMT can interview the patient’s family provided the questions concern the chief complaint. AR 1273, 1296.

Paramedics have discretion in the order of performing assessments. AR 1287. However, a paramedic cannot determine the appropriate treatment without an assessment. AR 1291. It is a violation of the standard of care not to assess a patient with an emergency. AR 1291-92.

The third step is treatment, which can include transportation. AR 1273. Pimentle was not sure what kind of treatment would best suit Tagliere’s situation. AR 1273. Documentation is last step. AR 1273.

No training covers what paramedic should do when he is alone and without an ambulance or equipment. AR 1274-75. Normal childbirth could justify transportation in whatever vehicle the patient has, but a complication may require an ambulance, oxygen therapy, an IV, and transportation to the hospital emergency room. AR 1275. The paramedic’s experience and training play an important role in what to do. AR 1276. If a hospital is nearby, the paramedic may advise that the patient get there without waiting for an ambulance. AR 1276. The paramedic could also call for an ambulance, but in North Hollywood an ambulance could take 15-20 minutes to arrive, longer than a drive to the hospital. AR 1276.

A paramedic may only advise a patient not to wait for an ambulance after an assessment. AR 1293. If a patient does not know that the paramedic is going to transport them to the hospital – e.g., because the paramedic has told the husband to drive the patient himself -- the paramedic should communicate that fact. AR 1293.

An EMT is qualified to deliver a baby. AR 1293-94. If a patient is having a miscarriage on the scene, the paramedic cannot do anything to stop the miscarriage. AR 1277. Tagliere offered to call an ambulance and told Lindor he may want to drive his wife to the hospital, and Pimentle could not think of any other options he could have given. AR 1277.

A plug buggy can have emergency functions, but not all do. AR 1270. They are used to drop off equipment at fire scenes. AR 1271. He would never use a plug buggy to escort a vehicle to a hospital. AR 1271. There is no emergency equipment on a plug buggy and a paramedic cannot transport a patient in a plug buggy. AR 1277.

Once the ambulance arrived, a lot of Tagliere’s issues were resolved. AR 1280. The proper procedure was to inform the ambulance paramedics that there was a pregnant woman with an issue and possibly abnormal childbirth, continue the evaluation, and call in a still alarm (an alarm outside 911 activation). AR 1280, 1281. Tagliere could then “punt” a lot of the responsibility to those paramedics since they have the necessary equipment to help. AR 1280.

If Pimentle was Tagliere’s commanding officer, he would approve of Tagliere’s actions. AR 1282. While stopping to get his turnout gear was odd, Tagliere would need to bring it if he expected to continue with the assessment and treatment and join Huerta in the ambulance. AR 1282. There was also no requirement for Tagliere to tell Lindor what he was about to do – i.e., that he was going to talk to the other paramedics or that he would transport Huerta. AR 1285, 1294. Some degree of communication would have helped, but time was of the essence. AR 1285-86.

Pimentle’s one caveat is that Tagliere did not get very far with an assessment. AR 1296. He spoke to Lindor, which is ok, but he did not get very far. AR 1296. However, the ambulance arrived in less than a minute and was supposed to take over and perform a more thorough assessment and treatment based on the findings. AR 1296. If he had decided to go to the hospital, then he would have continued the assessment. AR 1298. But he never got the chance because the paramedic rescue arrived on scene. AR 1298.

On October 21, 2021, the ALJ issued her Proposed Decision on remand. AR 1365-93. She explained that EMSA’s director had complied with the writ by setting aside the decision revoking Tagliere’s license, reconsidering the case pursuant to CCP section 1094.5(f) as required by the court’s judgment, and restoring Tagliere’s probationary license until the outcome of reconsideration. AR 1367. The matter was remanded for a hearing to address the applicable standard of care to determine gross negligence and incompetence. AR 1368. In addition to the expert testimony, the parties filed closing briefs on the issue. AR 1368.

The ALJ explained that she had admitted the 911 call audio because it matched the summary that was admitted during the first hearing and the audio accurately reflects the previously admitted transcript. AR 1374, n. 6.

The 2021 Proposed Decision reiterated that Lindor pulled up to the Station about the same time Tagliere pulled up in his plug buggy. AR 1370. Lindor informed Tagliere that Huerta was pregnant, had gone into labor, and her water had broken. AR 1370. Tagliere did not assess Huerta or provide care, depite Lindor’s request for help. AR 1370-71. Instead, he offered to call an ambulance or Lindor could continue to drive Huerta to the hospital himself. AR 1370-71. The Complainant did not establish that Tagliere knew Huerta was bleeding. AR 1371, n. 4.

Thirty to forty seconds into the conversation, two paramedics arrived in an ambulance but did not provide care or examine Huerta, even after they learned of Huerta’s condition and Lindor’s pleas for help. AR 1371. Kasahara backed the ambulance into the station. AR 1371. While Tagliere’s conversation with Beaty and Kashahara did trigger a still alarm, none of the LAFD employees told Lindor and Huerta that they would care for Huerta before getting the ePCR or Tagliere’s equipment. AR 1371-72. As Tagliere walked away to retrieve equipment from his plug buggy and Beaty went to the ambulance to get a ePCR, Lindor drove off yelling how he could not believe they would not help his wife. AR 1372. Lindor reasonably believed that LAFD would not provide urgently needed care. AR 1372.

Upon review of the full administrative record, Stratton opined that, despite the somewhat unusual situation, Tagliere had a duty to treat and evaluate Huerta the minute Lindor said it was an emergency. AR 1373-75. After establishing scene safety, he should have examined Huerta directly instead of speaking to Lindor. AR 1374. He never checked if Huerta’s body or mental state indicated signs of shock or if her airways were open. AR 1375.

Once the assessment was done, Tagliere should have acquired an ambulance by ringing the station doorbell to see if anyone was inside or using his radio. AR 1375. Instead, he told Lindor to go to the hospital himself. AR 1375. Alternatively, he could have arranged transport in the ambulance that arrived at the Station. AR 1375. Transport is one of the key reasons an EMS system has existed in the United States for the past 100 years. AR 1375. An ambulance with sirens and lights can get to the hospital quicker than a private citizen. In failing to arrange transport, Tagliere violated Policy 808 and failed to meet the standard of care. AR 1376. He also failed to meet the standard of care in sending Lindor, who was an emotionally distraught driver, into traffic when he posed a safety risk. AR 1376.

Tagliere also failed to transfer the information to the ambulance crew other than to call a still alarm; he therefore remained the pertinent responsibly party. AR 1376. He then walked away to get turnout equipment he did not need. AR 1376. Yellow pants for firefighting (turnouts) are not necessary for the type of emergency Tagliere was facing. AR 1376.

Lindor never refused treatment. AR 1377. His wife had a medical problem, he requested care, and Tagliere knew that. AR 1377. Tagliere never told Lindor of the risks of refusing care or ensured Lindor and Huerta had a plan; this also falls below the standard of care. AR 1377.

Tagliere’s failure to assess the patient, the failure to arrange for transport, decision to tell Lindor to drive to the hospital himself, and failure to inform the ambulance crew of the situation are each an act of gross negligence. AR 1377-78. His failure to arrange for transport also meets the definition of incompetence. AR 1378.

Pimentle testified that a pregnant woman is not always considered a medical emergency if there are no other factors involved; EMTs are allowed to do childbirth unless circumstances require additional measures. AR 1381. The situation was not normal, but Tagliere should have first established scene safety and then assessed the patient, including questions to her family. AR 1381-1382. Treatment and documentation should have followed. AR 1382.

Because it was unusual for a paramedic to have no equipment, Pimentle could not say if Tagliere violated the standard of care. AR 1382. EMTs should rely on experience and training to decide how to approach a patient. AR 1382.

Pimentle opined that, after the other two paramedics arrived, Tagliere should have explained to them the situation and transferred responsibility to the more prepared party. AR 1383. His decision to get his turnout gear afterwards was odd but acceptable. AR 1383. However, Tagliere could have also told Lindor and Huerta that the three paramedics would help them and take Huerta to the hospital. AR 1383-1384. Tagleire should not have told Lindor to take Huerta himself after the ambulance arrived without additional assessment. AR 1384. Although Pimentle also testified that an LAFD paramedic would never use a plug buggy to escort a vehicle because it would be inappropriate, the ALJ called that a conclusory statement without basis. AR 1381.

Pimentle opined that Tagliere made the best decisions possible in the short interaction and did not violate the standard of care. AR 1384. Tagliere did not lack the degree of knowledge, skill, and ability ordinarily possessed by a licensed paramedic. AR 1384.

The ALJ noted that a factfinder may evaluate expert opinion by examining the reasons and factual data upon which the expert’s opinions are based. AR 1385. She concluded that Stratton’s opinion held greater weight because he reviewed the entire record while Pimentle only reviewed a portion. AR 1386. Pimentle’s opinion also suffered because he (1) admitted that the unique circumstances made it hard for him to draw a conclusion, and (2) acknowledged that Tagliere did not assess Huerta. AR 1386.

The ALJ concluded that Tagliere’s failure to assess Huerta when he knew she was in labor – which made it an emergency – was gross negligence. AR 1386. Tagliere acknowledged that he did not follow LAFD protocol. AR 1386.

Tagliere’s failure to provide transportation to Huerta while she experienced an emergency was grossly negligent and incompetent. AR 1387. It also violated Policy 808 because Huerta was a patient with abdominal pain and vaginal bleeding who therefore required transportation. AR 1387.

Even if Tagliere was going to help, his failure to communicate to Huerta that he would do so was gross negligence. AR 1388. Tagliere told Lindor to take Huerta to the hospital but did not recant that advice when the ambulance arrived. AR 1388. Unique as the scene was, Tagliere had established scene safety but failed to move on to patient assessment, which he could do alone. AR 1388. Lindor’s decision to leave the scene was not refusal of treatment because by then Lindor reasonably believed Tagliere would not help. AR 1388.

Based on the findings of gross negligence, incompetence, and violations of LAFD procedures, Tagliere violated the terms of his probation. AR 1389. H&S Code section 1798.200 lists all three as proof of a threat to public health and safety and therefore grounds for discipline. AR 1390. Tagliere’s probation identified any violation of H&S Code section 1798.200 as a violation of his probation and grounds for license suspension or revocation. AR 1391.

22 CCR section 100176(a) provides the rehabilitation criteria to be considered in deciding whether to suspend or revoke a license: (1) the nature and severity of the acts or crimes; (2) evidence of any wrongful acts committed after the ones at issue; (3) the time that has elapsed since commission of said acts or crimes; (4) the extent of compliance with terms of probation; (5) evidence of expungement proceedings; and (6) evidence of rehabilitation. AR 1392. The ALJ found no evidence of rehabilitation and determined that public protection warrants revocation of the license. AR 1392.

On October 25, 2021, EMSA adopted the 2021 Proposed Decision and revoked Tagliere’s license, effective December 1, 2021. AR 1394.

Petitioner Tagliere challenges the ALJ’s findings[2] of his guilt for (1) incompetence, (2) gross negligence in failing to assess Huerta, (3) gross negligence in failing to transport Huerta, (4) gross negligence in failing to communicate with the other paramedics, and (5) violation of the terms of his probation. Tagliere also challenges the admission of the 911 call and Stratton’s expert testimony based on that call.

The EMSA Guidelines define “incompetence” as “[t]he lack of possession of the degree of knowledge, skill, and ability ordinarily possessed and exercised by a licensed and accredited paramedic.” See 22 CCR §100173(c); AR 261.

In reviewing findings of incompetence, “[t]he term ‘incompetency’ generally indicates an absence of qualification, ability or fitness to perform a prescribed duty or function.” Kearl v. Bd. of Med. Quality Assurance, (“Kearl”) (1986) 189 Cal. App. 3d 1040, 1054. “[T]he terms negligence and incompetency are not synonymous; a licensee may be competent or capable of performing a given duty but negligent in performing that duty.” Pollak v. Kinder, (1978) 85 Cal. App. 3d 833, 838. “[A]a single act of negligence...may be attributable to remissness in discharging known duties, rather than attributable to ignorance and incompetency respecting their proper performance.” Id. (citing Peters v. S. Pac. Co., (1911) 160 Cal. 48, 62).

Tagliere contends that the ALJ’s finding of incompetence is not supported by sufficient evidence. To support her conclusion, the ALJ relied upon a singular, unsupported finding: “[Tagliere’s] failure to provide [Huerta] with transportation when she was experiencing an emergency is grossly negligent and incompetent.” AR 1387. He argues that this finding directly contradicts the ALJ’s finding that Tagliere told Lindor that he could continue to drive Huerta to the hospital himself or that Tagliere could call them an ambulance. AR 1371. Accordingly, it was erroneous for the ALJ to conclude that Tagliere failed to provide transportation because the ALJ found that Tagliere offered Huerta transportation options.

Tagliere adds that an ambulance arrived within 30 to 40 seconds after Tagliere and Huerta arrived at the Station, and Tagliere began to arrange for transportation. AR 1370-72. Unfortunately, Lindor drove away with Huerta as a paramedic walked toward the vehicle. AR 1371-72. The ALJ’s findings do not show that Tagliere failed to arrange transportation. To the contrary, they illustrate that, when faced with a highly unusual situation, Tagliere offered transportation options and sought assistance from the crew of an ambulance. Thus, the ALJ erred in finding that Tagliere acted incompetently because there is no evidence to suggest that Tagliere’s actions demonstrated that he was unfit to perform his duties. Kearl, supra, 189 Cal. App. 3d at 1054.[3]

The court does not agree that Tagliere arranged for transportation. See post. However, the court does agree that there is insufficient evidence of incompetence. There is no evidence that Tagliere did not know what to do in transporting Huerta. He just did not do it. This is not a lack of the degree of knowledge, skill, and ability ordinarily possessed and exercised by a licensed and accredited paramedic. See 22 CCR §100173(c).

“Gross negligence” is an extreme departure from the standard of care which under similar circumstances would have ordinarily been exercised by a reasonably prudent person trained and acting in a similar capacity while engaged in the performance of his or her duties if confronted with a similar circumstance. See 22 CCR § 100173(c); AR 172 (EMSA Guidelines).

The determination whether Tagliere acted with gross negligence requires the court to determine whether Tagliere departed from the standard of care and then whether that departure was extreme under the circumstances. Where a medical process or procedure is not a matter of common knowledge, expert testimony is necessary to determine a violation of the standard of care and negligence. Folk v. Kilk, (1975) 53 Cal. App. 3d 176, 185.

Because gross negligence only exists when an agency proves by clear and convincing evidence that a medical professional’s conduct was an extreme departure from the standard of care, these findings occur in only the most egregious circumstances. See generally Davis v. Physician Assistant Bd., (2021) 66 Cal. App. 5th 227, 269 (physician’s assistant acted with gross negligence by failing to remedy patient’s lump for two and a half months without referring her to medical doctor); Gore v. Bd. of Med. Quality Assurance, (“Gore”) (1980) 110 Cal. App. 3d 184, 194 (doctor acted with gross negligence when patient died six days after undergoing a hysterectomy because doctor’s failure to diagnose, treat, or review notes related to the patient’s condition was extreme departure from standard of care); Glover v. Bd. of Med. Quality Assurance, (1991) 231 Cal. App. 3d 203, 207 (doctor was grossly negligent when he prescribed anti-psychotics in large doses to a patient with a history of suicide attempts and patient attempted suicide three times, but the doctor did not alter the course of treatment). See also Franz v. Bd. of Med. Quality Assurance, (1982) 31 Cal. 3d 124, 136-37, 142 (doctor was not grossly negligent in (1) failing to consider and record abdominal X-ray, (2) retaining a competent emergency surgeon, and (3) scheduling the surgery before he retained a surgeon, but he was grossly negligent in choosing surgery at a hospital without an ICU for high risk patient).

The ALJ found that Tagliere acted with gross negligence because he (a) failed to assess Huerta when he knew she was in labor; (b) failed to provide her with transportation during an emergency, and (c) violated Policy 808 by not transporting Huerta when she was experiencing abdominal pain or vaginal bleeding. AR 1386-87.

With regard to his failure to assess Huerta, Tagliere argues that Pimentle testified that a primary assessment can occur through observation (AR 1291), and a secondary assessment can take place when a paramedic speaks to the patient’s family member (AR 1273). Tagliere was just seconds into gathering information from Lindor for the assessment when the ambulance arrived and he was required him to stop the assessment to secure transportation. AR 1280. Because of the importance of transportation, it was critical for Tagliere to do so. After Tagliere requested the still alarm, he went to gather his gear because he was not sure whether he was going to relieve one of the ambulance crew and accompany Huerta to the hospital. AR 1274, 1282. Pet. Op. Br. at 7.

With regard to his failure to transport, Tagliere argues that the ALJ ignored her own factual findings that he offered to transport Huerta and that he did not know she was bleeding. AR 1371. Moreover, the fact that Lindor left the Station with Huerta two minutes into the interaction and after an ambulance arrived undermines any finding that Tagliere failed to transport her. AR 1372. Pet. Op. Br. at 6.

Pimentle opined that, upon the ambulance’s arrival, Tagliere should approach the ambulance crew, explain the situation, initiate a still alarm, and advise them that he was prepared to provide assistance and this is precisely what Tagliere did. AR 1280, 1371. After Tagliere spoke with the paramedics and requested a still alarm, he returned to the plug buggy to obtain his gear. AR 1281-82. Pimentle opined that this was acceptable although “a little odd.” AR 1282. Tagliere collected his gear before going back Lindor’s SUV because paramedics are not permitted to proceed into an emergency vehicle without all of their equipment, and Tagliere intended to continue the assessment and treatment of the patient and join the other paramedics in the ambulance to the hospital. AR 1282. This oddity, which appears motivated by compliance with the rules, does not amount to a departure of the standard of care, much less an extreme departure. Pet. Op. Br. at 10.

Pimentle opined that experience and training play an important role in determining how a paramedic creates a treatment plan. AR 1276. LAFD does not provide paramedics with training regarding how to act when alone and when confronted with a patient with no equipment and no ambulance. AR 1274-75. Tagliere had to make split second judgments without the benefit of any medical equipment, a transport vehicle, a partner, or moments to reflect or think through a treatment plan. Because this event did not occur at Tagliere’s home station, he was unfamiliar with the area, including the distance to the nearest hospital or possible wait time for an ambulance. AR 1276. Based on the totality of the circumstances, Pimentle opined that Tagliere’s only options were to call an ambulance or advise the husband to drive Huerta to the hospital. AR 1275, 1277. As a result, Tagliere did not depart from the standard of care before the ambulance arrived. Pet. Op. Br. at 9-10.

The evidence shows that Tagliere attempted to arrange transportation and, in a highly charged moment, Lindor did not understand Tagliere’s actions and left the Station. Tagliere’s failure to transport Huerta stems from the husband’s misunderstanding and Tagliere’s communication during a brief irregular incident. But a single instance of less than perfect communication does not amount to a breach in the standard of care, much less an extreme departure in the standard of care. Reply at 4.

Tagliere concludes that this evidence does not show an extreme departure from the standard of care for either the assessment or transport. Despite the irregularity of the circumstances, Tagliere acted efficiently during the two-minute interaction to learn Huerta’s needs and to arrange transportation. Lindor’s misunderstanding in leaving the Station stems from Tagliere’s less than perfect communication but that does not amount to a breach in the standard of care, much less an extreme departure in the standard of care. Accordingly, there is insufficient evidence for a finding of gross negligence. Pet. Op. Br. at 7.

Tagliere argues that the above-mentioned case law on gross negligence is distinguishable. Those cases involve a failure to properly prescribe medications and treatments over several days or even years, and each of the patients died because of the doctors’ mistakes. Further, the gross negligence occurred in a hospital where the medical professionals had adequate resources to meet their medical obligations and time to consider and execute a treatment plan. Pet. Op. Br. at 9.

Here, both experts agreed that the underlying incident was not a normal situation in which a paramedic is dispatched in an ambulance with a partner. AR 1217, 1272, 1273. The 911 operator made the highly irregular decision to direct the husband to stop at Station 60 for assistance. AR 1286-87. Huerta and Tagliere arrived at Station 60 at approximately the same time. AR 1270-71, 1277, 1370. There appeared to be no resources at the Station and Tagliere had no equipment or means to transport. AR 1270-71, 1277. Approximately 30 to 40 seconds later, an ambulance arrived and Tagliere approached to explain the situation and requested that the ambulance initiate a still alarm. AR 1281, 1371.

The evaluation of evidence on gross negligence requires a determination of expert credibility and reliability. As ESMA points out (Opp. at 10), an expert’s opinion is no better than the facts upon which it is based. Turner v. Workmen’s Comp. Appeals Board, (1974) 42 Cal.App.3d 1036, 1044. Expert opinion is not substantial evidence when it is based upon conclusions or assumptions not supported by evidence in the record. Hongsathavij v. Queen of Angels/Hollywood Presbyterian Med. Center, (1998) 62 Cal.App.4th 1123, 1137. “The chief value of an expert’s testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion.” Rorges v. Department of Motor Vehicles, (2011)192 Cal.App.4th 1118, 1122 (emphasis in original) (quoting Carter v. United States, (D.C. Cir. 1957) 252 F.2d 608, 617).

ESMA contends (Opp. at 11) that the ALJ appropriately accorded greater evidentiary weight to Stratton’s opinions and found them more convincing than Pimentle’s. AR 1385-86. The ALJ noted that Stratton “based his opinion and findings on a thorough review of the administrative record,” whereas Pimentle “limited his review of the matter to a portion of the administrative record.” AR 1385-86, 1206-07. The ALJ concluded Stratton’s findings and opinions were based upon more robust factual data. AR 1373-74.

The court finds this argument only somewhat persuasive. Pimentle reviewed the Skelly packet containing the report (AR 32-122, 1289) and did not review any testimony. Stratton reviewed the factual record from the 2016 Hearing, including all of the testimony. While the ALJ does not explain what Pimentle missed in his truncated review of the Skelly material, Stratton was able to obtain the nature and flavor of the testimony of Huerta, Lindor, Tagliere, and Beaty, and Pimentle was not.

More important, the ALJ found Pimentle’s opinion that Taglere acted within the standard of care less convincing because Pimentle admitted that he had difficulty forming an opinion because of the unusual circumstances of Tagliere’s interaction with Lindor and Huerta and he acknowledged that Tagliere did not assess Huerta. 1386.

The court agrees. It seems plain that Pimentle danced around the issue of Tagliere’s failure to assess Huerta, admitting that an assessment was required but excusing Tagliere’s failure by opining that he could start with an interview of her family (AR 1273, 1296) and that the ambulance arrived and was supposed to take over the assessment or else Tagliere could have continued the assessment if he decided to go to the hospital in the ambulance. AR 1296, 1298. These opinions are unsupported by any evidence that the ambulance paramedics took over -- in fact, the paramedics deferred to Tagliere. The opinions also are unsupported by evidence that Tagliere intended to accompany Huerta to the hospital; he merely testified that he walked towards his plug buggy to get his firefighting pants, jacket, and helmet in case he would be part of the team taking her to the hospital. AR 1017-18. The ALJ appropriately accorded more weight to Stratton’s expert opinions based upon his reasoning and reliance upon credible evidence.[4]

Tagliere criticizes the ALJ’s reliance on Stratton’s testimony as made without any analysis. Although Evidence Code section 805 permits an expert to testify on “the issue to be decided by the trier of fact[,]” expert testimony that constitutes legal conclusions is not substantial evidence. Downer v. Bramet, (1984) 152 Cal. App. 3d 837, 841. Reply at 3-5. EMSA remanded this case to the ALJ, not to Stratton, for the parties to present expert testimony regarding the standard of care. AR 584, 607. The ALJ’s adoption of Stratton’s opinion as a legal conclusion without any additional analysis impermissibly deprived Tagliere of a neutral decisionmaker because Stratton decided the ultimate issue in this case. Reply at 3.

This issue is raised for the first time in reply and may be disregarded. See Regency Outdoor Advertising v. Carolina Lances, Inc., (“Regency”) (1995) 31 Cal.App.4th 1323, 1333. In any event, the argument is untenable. The ALJ did not simply adopt Stratton’s legal conclusions. The ALJ did not simply wholesale adopt Stratton’s opinions. She described Stratton’s opinions (AR 1372-78), Pimentle’s opinions (AR 1378-85), why Stratton’s opinions deserved greater weight (AR 1385-86), and why Tagliere’s conduct was grossly negligent (AR 1386-88). This is sufficient.

The ALJ concluded that Tagliere’s failure to assess, or even attempt to assess, Huerta violated the standard of care and constituted gross negligence. He made no effort to assess a patient whom he knew to be in labor,” despite his training in how to perform a “detailed assessment of the patient” during an emergency involving childbirth. AR 1386 (citing 22 CCR §100155(b)(12)). Tagliere acknowledged that he did not follow LAFD protocol which requires that personnel in contact with a patient conduct an assessment.” AR 1386.

Stratton’s expert opinion supports this conclusion. Stratton opined on the required procedure in an emergent situation. The minute Lindor said he had an emergency because his wife was in labor, there was a medical emergency until such time as Tagliere concluded otherwise after performing an assessment. AR 1218, 1235-37. Tagliere first should have calmed Lindor down and then assessed Huerta. AR 1217-18. Tagliere could not get Huerta’s medical history from Lindor; he must get it from the patient unless she is unconscious. AR 1222. Tagliere admitted that he never even looked at Huerta, who was sitting only a few feet away from him. AR 1218. He never asked how she was, never checked to see if her airway was open, never looked at her lips or skin to see if she may be hemorrhaging, and never assessed her mental state to see if she was going into shock. AR 1218. All these basic things can be done without equipment, which even an EMT is expected to do, let alone a paramedic level 3 such as Tagliere. AR 1219. Whether Tagleire intended to talk to Huerta is unclear, but even if he intended to do so his delay was grossly negligent. AR 1232, 1242-43. Stratton concluded that, pursuant to the statutory definition of “gross negligence” and based on the standard of care for paramedicine, Tagliere’s “failure to assess by visual exam and even approach Huerta who was in critical distress is gross negligence.” AR 1222, 1225, 1377.

Stratton’s opinion supports a conclusion that Tagliere’s failure to assess was an extreme departure from the standard of care and grossly negligence. Huerta testified that Taglilere never spoke to her (AR 689-691, 991), and Tagliere admitted that he did not look into the SUV, did not walk over to the passenger side of the vehicle where she was sitting; and did not visually observe her condition. AR 1014-15, 1024-26.

Pimentle’s testimony does not contradict Stratton’s testimony on this point. Pimentle agreed that Tagliere first should have ensured a safe environment by calming Lindor and then conducted “an assessment as to what’s going on.” AR 1272-73. Although he testified that there is no specific way to conduct an assessment, Pimentle conceded that a paramedic cannot “identify what is in the patient’s best interested without assessing the patient” (AR 1291), and that it is a violation of the standard of care not to perform a patient assessment when a patient presents with a medical emergency. (AR 1291-92). Pimentle agreed that a complete assessment is required and that this cannot be done “within [a] second, less than a minute”. AR 1294. As stated ante, Pimentle’s excuse for Tagliere’s failure that he could initiate an assessment by speaking with a family member, and his speculation that Tagliere either turned over the assessment to the ambulance paramedics or would have continued the assessment if he decided to go to the hospital, lack a sound factual basis. Tagliere was grossly negligent in failing to assess Huerta.

Negligence and gross negligence are relative terms. Gore, supra, 110 Cal.App.3d at 198. As the danger becomes greater, the actor is required to exercise commensurate caution. Id. (citing Prosser, Law of Torts, (4^th ed. 1971) p. 180. Tagliere’s violation of a most basic tenant of paramedic responsibility was inexcusable gross negligence.

The ALJ concluded that Tagliere’s failure to provide Huerta with transportation when she was experiencing an emergency was grossly negligent. AR 1387.

Stratton’s expert testimony supports this conclusion. The 911 call reflected that Lindor asked for help repeatedly. AR 1211. He explained that Huerta had a lot of pressure, meaning abdominal pain and discomfort. AR 1211. Lindor said that he ran three lights to get there. AR 1212. He acknowledged that the ambulance arrived, and the call reflects that the ambulance paramedics stood down and began to back the ambulance into a parking spot after a discussion with Tagliere. AR 1211. A voice on the 911 call -- which Stratton understood was later identified as Tagliere -- repeatedly says: “Take her to the hospital.” AR 1212.

Stratton opined that it is a normal routine to back an ambulance into a parking place, but in an emergency a paramedic must unload the ambulance and take care of the emergency. AR 1212. Lindor was asking for transport and needed help, and it was not forthcoming. AR 1212. He finally took matters into his own hands and tried to do the best for his wife. AR 1212.

Stratton opined that transport is the key element in this case and Tagliere’s actions were “way below the standard of care”. AR 1220. Tagliere could have used the radio in his truck to call for an ambulance. AR 1219, 1222. Tagliere did not even go inside the station to check if anyone was there, and testimony suggested that there was an engine in the station. AR 1219. An ambulance marked with lights and sirens enables a paramedic to transport sick and injured people through traffic safely. AR 1220. No matter how fast one can drive a private vehicle in 6 p.m. traffic, an ambulance can get to the hospital quicker. AR 1220. Tagliere even could have gotten in the plug buggy and said “follow me” with his lights and sirens turned on, which is not uncommon. AR 1220. Additionally, Lindor’s stress made him a distracted driver akin to texting and driving, which put everyone Lindor passed at risk. As a result, Tagliere acted even further below the standard of care. AR 1221, 1223. Stratton concluded that Tagliere’s instructions to Lindor to go by private vehicle – which was extremely below the standard of care – is gross negligence when there were other alternatives available. AR 1221-23, 1225-26.

This opinion is supported by the weight of the evidence. Transport was required because Huerta was in premature labor, in pain, and bleeding. While Tagliere did not know about the bleeding or the pain only because he failed to conduct an assessment. All witnesses agreed that Lindor asked Tagliere to transport Huerta to the hospital and that Tagliere repeatedly told Lindor to drive her to the hospital himself. Tagliere did so without first conducting any type of assessment.

Pimentle’s opinion does not undermine this conclusion. He was “not quite sure what kind of treatment” was appropriate, but “[t]ransportion seems to be an issue”. AR 1273. Pimentle testified that where initially there was no ambulance present, the means of transporting Huerta to the hospital “really depends on that’s going on with this patient.” AR 1275-76. He conceded that, after the ambulance arrived at the Station, it was not appropriate for Tagliere to instruct Lindor to drive Huerta to the hospital without an assessment. AR 1293. He suggested that the arrival of the ambulance resolved a lot of Tagliere’s issues because he could inform the ambulance paramedics that there was a pregnant woman with an issue and then “punt” a lot of the responsibility to those paramedics since they have the necessary equipment to help. AR 1280. Yet, Tagliere did not punt the issue to the paramedics; they deferred to him. Finally, Pimentle admitted that Tagliere’s actions in walking away from Lindor to grab his yellow pants, jacket, and helmet was “odd” but “acceptable.” AR 1282. Pimentle’s testimony on the transport issue was based on speculation and incorrect assumptions.

The weight of the evidence supports the ALJ’s finding that Tagliere’s failure to transport Huerta to the hospital was grossly negligent.

e. The ALJ’s Finding that Tagliere Was Grossly Negligent in Failing to Communicate With Huerta

The ALJ found that, even if Tagliere was going to help, his failure to communicate to Huerta that he would do so was gross negligence. AR 1388. The ALJ noted that Tagliere told Lindor to take Huerta to the hospital and that he did not recant that advice when the ambulance arrived. AR 1388.

EMSA argues that the weight of the evidence supports this conclusion. Tagliere repeatedly told Lindor to “take her to the hospital.” Even after the ambulance arrived at the Station, Tagliere did not inform Lindor or Huerta that he was planning to provide an assessment or care. Instead, he simply walked away. AR 1017, 1285. Opp. at 15-16.

The ALJ’s finding is neither part of the Accusation (AR 641) nor supported by expert testimony. Nothing in the Accusation alleged that Tagliere was grossly negligent for failing to communicate to Huerta or Lindor an intention to transport her. Tagliere only was accused of gross negligence for failing to assess, treat, and transport Huerta. AR 641. He was not accused of failing to communicate with Huerta/Lindor.

Nor did Stratton opine that Tagliere’s failure to keep Huerta informed was gross negligence. He testified that Tagliere failed “to inform his colleagues in the ambulance of what was a critical event” and that “they needed to come and help him,” which was a below the standard of care and gross negligence. AR 1223, 1225, 1233 (emphasis added). Stratton did not opine that a failure to inform Huerta of his plan was gross negligence.

Stratton did opine that, although Tagliere testified that he offered to call for an ambulance, he never communicated an intent to transport Huerta to either her or Lindor. AR 1246. Stratton rendered this opinion as part of his criticism of Tagliere for failing to transport and did not opine that the failure to communicate with Huerta was below the standard of care. Stratton also opined that, if Tagliere intended to speak to Huerta, his delay in doing so constituted gross negligence. AR 1242-43. This opinion was part of Stratton’s opinion that Tagliere breached the standard of care by not assessing Huerta, not a duty to communicate with her about transport.

In contrast, Pimentle expressly opined that Tagliere had no duty to tell Lindor what he was about to do – i.e., that he was going to talk to the other paramedics or that he would transport Huerta. AR 1285, 1294. Some degree of communication would have helped, but time was of the essence. AR 1285-86.

The ALJ’s finding that Tagliere was grossly negligent in not communicating with Huerta is not within the scope of the Accusation and is unsupported by expert testimony.

Tagliere contends that Stratton’s expert testimony was based on facts not in evidence and unauthenticated evidence. He argues that the expert testimony was required by Judge Strobel and EMSA for the purpose of determining whether he breached the standard of care, not additional fact finding. AR 575, 586, 606, 621. But Stratton assumed facts that contradicted the ALJ’s findings.

First, the ALJ found that Tagliere told Lindor that “he could continue to drive Huerta to the hospital himself or that [Tagliere] could call them an ambulance.” AR 1370-71. Yet, Stratton opined, over Tagliere’s objection, that Tagliere failed to arrange transport per Policy 808 (AR 1225-26) and that there was nothing in the record to confirm Tagliere’s statement that he offered to call an ambulance. AR 1246-48. Pet. Op. Br. at 10-11; Reply at 7.

Second, Stratton’s opinion that Tagliere violated Policy 808 assumed that Huerta met the conditions of Policy 808 – i.e., that she was either bleeding vaginally or experiencing abdominal pain. AR 1225-26, 1244. But this assertion directly contradicts the ALJ’s finding that there was insufficient evidence that Lindor told Tagliere that Huerta was bleeding. AR 1371, n. 4. Pet. Op. Br. at 11-12.[5]

Stratton’s testimony that nothing in the record confirms Tagliere’s testimony that he offered to call an ambulance was correct. AR 1246. No other witness so testified. Stratton’s testimony that Policy 808 required Tagliere to transport Huerta was not based upon whether Tagliere knew that Patient was bleeding, but rather on the fact that Huerta was in fact vaginally bleeding and experiencing abdominal pain.[6]

However, Stratton’s opinion that Tagliere violated Policy 808 was based on the 911 call in which Lindor expressly stated that Huerta had a lot of pain, was bleeding, and had a lot of pressure. AR 1211. Tagliere was not present for this portion of the 911 call, and it cannot be considered as evidence of his knowledge of her pain. Because there is no other evidence that Tagliere knew Huerta was in pain, and the ALJ correctly found that the evidence did not show that he knew she was bleeding (AR 1371, n. 4), Stratton’s opinion that Tagliere violated Policy 808 is not supported by the weight of the evidence.

Tagliere contends that the ALJ improperly admitted the 911 call over his authenticity objection. AR 1197, 1214. An audio recording must be authenticated to be received into evidence. See Evid. Code §§ 250, 1401. A recording is properly authenticated “by showing it is a reasonable representation of that which it is alleged to portray.” People v. Dawkins, (2014) 230 Cal. App. 4th 991, 1002. This is typically done by a party to the conversation testifying to the accuracy of the recording. Id.

Tagliere notes that no party to the 911 call testified to authenticate it and no person testified who could identify any of the voices on the call. He concludes that there is no evidence that the recording is authentic, meaning that it is what it purports to be. See AR 1229-30. Even if the recording is self-authenticating because the operator announced that he represents 911, the recording can only represent that a 911 call was made and not that certain people spoke or made specific hearsay statements. Therefore, the 911 call was improperly admitted and improperly relied upon by Stratton. Pet. Op. Br. at 12; Reply at 7.

Tagliere also contends that the 911 summary was used for an improper purpose. The summary lacks authenticity and was admitted as administrative hearsay. AR 681-82. Therefore, Stratton’s reliance on the summary is improper. The ALJ admitted the 911 summary over Tagliere’s objection as administrative hearsay pursuant to Lake v. Reed, (1997) 16 Cal. 4th 448. AR 940-41. In the administrative context, “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” Id. at 458. The 911 call summary does not supplement other evidence because it was never authenticated, so it is not known whether the names attributed to the statements truly belong to the speaker. See Evid. Code §1521. Moreover, whatever Lindor said to the 911 dispatcher before speaking to Tagliere is immaterial to show Tagliere’s knowledge at the time of his actions. Therefore, any reliance on the 911 summary by the ALJ or Stratton was improper. Pet. Op. Br. at 12-13; Reply at 8-9.

Under the Evidence Code, a “writing” includes any form of recording upon any tangible thing; any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof; and any record thereby created. Evid. Code §250. Authentication of a writing is required before the writing or secondary evidence of its content may be received in evidence. Evid. Code §1401. A recording is properly authenticated “by showing it is a reasonable representation of that which it is alleged to portray.” People v. Dawkins, (2014), 230 Cal. App. 4th 991, 1002.

“An audio recording is typically authenticated by showing it is a reasonable representation of that which is alleged to portray. Id. at 1002. “Typically a party to the conversation recorded is called to testify to the audio recording’s accuracy,” but foundation may also be supplied “by the person witnessing the event being recorded, . . . other witnesses testimony, circumstantial evidence, content and location, or any other means provided by law[.]” Ibid.

In a typical trial, an audio is authenticated and received into evidence and an accurate transcript is used as a demonstrative exhibit to aid the trier of fact and is not admitted into evidence. That did not happen in this case. During the 2017 Hearing, the ALJ admitted the certified LAFD Investigation Report (AR 30-122) as administrative hearsay. AR 940-41. This report included a summary of the 911 call. AR 47-48. As part of its investigation, LAFD interviewed Beaty, who listened to the 911 audio and confirmed that one of the voices on the recording must have been his. AR 677, n. 5, 702-03.

From these facts, EMSA concludes that Beaty was “a party to the conversation recorded” who testified that one of the voices in the 911 recording was his. Opp. at 18. Not so. Beaty did not testify about the 911 call when he testified at the 2016 Hearing. Thus, his statements about the call’s authenticity during the investigative interview are administrative hearsay and are not corroborative of any fact in evidence that the 911 recording or transcript is authentic. See Reply at 9.

EMSA argues that it was statutorily permitted to admit the 911 audio into evidence as part of the 2017 Decision because it may reject the ALJ’s proposed decision and “decide the case upon the record, including the transcript, . . . with or without taking additional evidence[.]” Govt. Code §11517(c)(2)(E) (emphasis added). This provision permitted EMSA to consider additional evidence for the 2017 Decision, and it did so. AR 912. Additionally, the ALJ unambiguously admitted the audio and summary as administrative hearsay during the 2021 Hearing. AR 983. Opp. at 17.

In reply, Tagliere argues that new evidence may only be admitted if it meets the four preconditions outlined in Govt. Code section 11517(c)(2)(E)(i)-(iv). Section 11517(c)(2)(E)(ii) specifically requires that “[t]he agency itself shall not decide any case provided for in this subdivision without affording the parties the opportunity to present either oral or written argument before the agency itself.” Tagliere contends that EMSA failed to allow him the opportunity to present oral or written argument. AR 586. Reply at 8.

Judge Strobel expressly declined to address this issue for the 2017 Petition, and it is preserved for this court to decide. AR 586. Tagliere is correct. EMSA should not have admitted the 911 audio for its 2017 Decision without giving him an opportunity to contest it.

Nonetheless, both were properly admitted. The 911 summary was admitted as administrative hearsay at the 2016 Hearing. The ALJ received the 911 audio at the 2021 Hearing as administrative hearsay over Tagliere’s objection. AR 1214; see 1374, n. 6. The ALJ compared the admitted call summary (AR 47-48) with the 911 audio and found that the former accurately summarizes the latter. Stratton also testified to the summary’s accuracy. AR 1211.

This is a backwards way of authenticating – the audio should be authenticated and admitted into evidence and then the transcript compared to the audio for accuracy. Even though the summary and audio are consistent, the question remains whether the 911 audio is authentic. A writing may be authenticated by its contents, including content that refers to or states matters unlikely to be known to anyone but the author. Evid. Code §1421. Given the testimony at the 2016 Hearing about the 911 call and who was present at the scene, the audio is self-authenticating. Given this authentication, the audio was admissible as direct evidence, not just administrative hearsay. Its contents are not hearsay because they are Lindor’s spontaneous utterances (Evid. Code §1240), the paramedics’ admissions (Evid. Code §1222) and non-hearsay statements of Tagliere to “take her to the hospital” (see Evid. Code §1200). Stratton could therefore rely on the 911 call for his opinion.

EMSA argues that any error in admitting the 911 call is harmless. See Lucas Valley Homeowners Assn. v. County of Marin, (1991) 233 Cal.App.3d 130, 147. The 911 audio and summary are brief, and Stratton’s reliance upon them were minimal. AR 681-82. Stratton testified that he could not pick up everything said on the 911 audio. AR 1211. He stated that the audio made obvious that Lindor was asking for help, that the ambulance arrived in a short period, that Tagliere gave no direct attention to Huerta, and that was a discussion between Tagliere and the ambulance paramedics, all of which are supported by other evidence in the record. AR 1211. Opp. at 18.

Tagliere merely replies that Stratton relied on the 911 call to form his opinion. AR 1210-12, 1240. Reply at 10. True, but almost all the same facts were otherwise in evidence and undisputed for Stratton to rely upon. Lindor’s statements on the 911 call concerning Huerta’s pain and bleeding were not heard by Tagliere and are relevant only to show that an assessment would have revealed these facts. Any error in admitting the 911 call would not reasonably have affected the outcome of the ALJ’s decision to revoke his license.

5. The Second Cause for Violation of LAFD’s Written Policies and Protocols

The Accusation’s second cause alleges that Tagliere violated H&S Code section 1798.200(c)(7) because his failure to assess, treat, and transport Huerta violated Policy 808, which is a locally adopted treatment protocol under that statute. AR 642.

The ALJ concluded that Tagliere violated his probation “by acting with gross negligence, incompetence, and violating LAFD’s written policies and protocols.” AR 1389.

Tagliere argues there is insufficient evidence for the ALJ’s conclusion that he violated LAFD’s written policies and protocols. He contends that the ALJ’s reference to a violation of “LAFD’s written policies and protocols” is unclear because she fails to include any analysis. AR 1389. The ALJ may be referring to Stratton’s opinion that Tagliere violated Policy 808, but this conclusion is puzzling because the Accusation did not allege that Tagliere violated Policy 808. AR 642. Moreover, the ALJ’s conclusion that Tagliere violated Policy 808 is unsupported by the evidence. Pet. Op. Br. at 13.

The Accusation’s second cause alleges that Tagliere violated H&S Code section 1798.200(c)(7) because he violated Policy 808, but the ALJ did not address the second cause. Instead, she addressed the third cause, which alleges that Tagliere violated the terms of his probation and her reference to his violation of written policies and protocols necessarily includes Policy 808 (and may also include LAFD’s assessment policy).

Thus, the ALJ found Tagliere guilty of violating his probation by violating Policy 808 (third cause), but she did not find Tagliere guilty of the second cause. There is no finding on the second cause for the court to address.

The Accusation’s third cause alleged that Tagliere violated the terms of his probation by failing to assess, treat, and transport Huerta. AR 642-44. The ALJ found that Tagliere violated the terms of his probation “by acting with gross negligence, incompetence, and violating LAFD’s written policies and protocols”. AR 1389.

Tagliere argues that the ALJ’s finding that he violated the terms of his probation lacks sufficient evidence that Tagliere acted incompetently, with gross negligence, or in violation of LAFD policies and protocols, and therefore there is insufficient evidence to establish that Tagliere violated the terms of her probation. Pet. Op. Br. at 13-14.

The court has concluded that the evidence of incompetence is insufficient. ESMA argues that Tagliere violated LAFD written policies and protocols, including LAFD’s policy requiring assessment (AR 45) and Policy 808 requiring transport of a person in Huerta’s condition. AR 1387. Opp. at 16.

There does not appear to be any evidence that LAFD’s policy concerning patient assessment is written and therefore this conclusion is not supported. See AR 45. There also is insufficient evidence that Tagliere is guilty of violating Policy 808. The 911 call is admissible as direct evidence. Lindor says on the call that she is in a lot of pain, there is blood coming out, and that “there is a lot of pressure” (meaning discomfort). AR 47. But this portion of the call occurred before Lindor arrived at the Station and spoke to Tagliere. Lindor testified that he asked Tagliere to take Huerta to the hospital so that the kids did not have to see their mother bleed and in labor, but he did not say he told Tagliere that she was bleeding or in pain. AR 957, 965. There is insufficient evidence that Tagliere violated LAFD’s written policies and protocols.

While the court concludes that the evidence of incompetence and violation of LAFD’s written policies is insufficient, Tagliere is guilty of gross negligence in failing to assess and transport Huerta. Each of these two violations “shall be considered evidence of a threat to the public health and safety” which may result in license revocation.” H&S Code §798.200(c)(2), (4).

The weight of the evidence shows that Tagliere is not guilty of incompetence. There also is insufficient evidence that he was grossly negligent in failing to communicate with Huerta and that he violated Policy 808. Further, the ALJ failed to make a finding on the Accusation’s second cause that he violated H&S Code section 1798.200(c)(7). However, Tagliere is guilty of gross negligence in failing to assess and transport Huerta. Each of these failures constitute violation of the terms of his probation, and Tagliere does not challenge the penalty of revocation for these failures. The Petition is denied.

Respondent EMSA’s counsel is ordered to prepare a proposed judgment, serve it on the Tagliere’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for November 3, 2020 at 9:30 a.m.

[1] The 911 audio as described in the LAFD investigation report (AR 47-48) was admitted into evidence as administrative hearsay despite the objection of Tagliere’s counsel that it was outside the evidence and not properly authenticated because there was no evidence that Tagliere said what is attributed to him on the call. AR 1212, 1214.

[2] For convenience, the court will refer to the ALJ’s Proposed Decision and not ESMA’s final decision.

[3] Tagliere also argues that a finding of incompetence cannot be based on expert Stratton’s testimony that failure to provide transportation for a patient who met the criteria for transportation in Policy 808 breached the standard of care because there is no evidence that Huerta met the criteria for Policy 808 or that Tagliere knew that she did. AR 1378, 1387. Indeed, the ALJ made no finding that Huerta met Policy 808. Pet. Op. Br. at 6, n. 2.

The court does not agree that Huerta did not meet the criteria of transport under Policy 808. Stratton testified that she was bleeding and clearly met the Policy 808 criteria for transport because she had abdominal pain or bleeding. AR 957, 965, 1220, 1244. The ALJ also found that Tagliere violated Policy 808 by failing to arrange transport. AR 1376. However, the court agrees that there is no evidence that Tagliere knew she was bleeding. AR 1371. Therefore, incompetence cannot be based on a violation of Policy 808.

[4] Stratton explained what the standard of care required and why Tagliere’s actions were grossly negligent. Although he did not use the words “extreme departure from the standard of care”, he did call Tagliere’s failure to transport as “way below the standard of care”. AR 1220. Moreover, it is obvious from his opinions that Tagliere was grossly negligent that he believed the departures to be extreme.

[5] Tagliere adds that Stratton incorrectly based his opinion on the 911 call audio which was not part of the original record, and the unauthenticated investigative summary of the 911 call which the ALJ admitted only as administrative hearsay. AR 940-41, 1207-08, 1210-12. Pet. Op. Br. at 11-12. This issue is addressed post.

[6] Tagliere argues that the ALJ only found that Huerta was bleeding “at some point”. AR 1370. See Reply at 7. The weight of the evidence shows that she was bleeding while at the Station. AR 957, 965.