Perez v. Gallego
| Decision Date | 11 January 2023 |
| Docket Number | 3D22-0267 |
| Parties | Ivette Perez, et al., Petitioners, v. Marglli Gallego, et al., Respondents. |
| Court | Florida District Court of Appeals |
Not final until disposition of timely filed motion for rehearing.
A Writ of Certiorari to the Circuit Court for Miami-Dade County Lower Tribunal No. 20-23064 Valerie R. Manno Schurr, Judge.
Geraldine Bonzon-Keenan, Miami-Dade County Attorney and Rachel C.G. Walters and Ezra S. Greenberg, Assistant County Attorneys, for petitioners.
Rasco Klock Perez & Nieto, and Hilton Napoleon, II, for respondents.
Before EMAS, HENDON and BOKOR, JJ.
Officers Ivette Perez and Carlos Luffi, sued in their individual capacities in the civil action below, petition for certiorari relief from the trial court's order granting an indefinite stay pending resolution of criminal proceedings against respondent, and plaintiff below, Marglli Gallego. Gallego argues, in pertinent part, that her invocation of the Fifth Amendment privilege against self-incrimination combined with the active criminal proceedings, provide the trial court with a sufficient basis to stay the civil action. Perez and Luffi point out that Gallego fails to offer a single case, in Florida or elsewhere, to support a stay of a civil action where the plaintiff seeks to assert her Fifth Amendment privilege.
Perez and Luffi further argue that under these circumstances, Gallego cannot simultaneously allege defamation and tortious interference and seek a stay based on possible self-incrimination in answering discovery related to the claims she brought. We agree with Perez and Luffi. For the reasons more fully explained below, the trial court departed from the essential requirements of the law in granting a stay under the circumstances. Gallego is free to assert her Fifth Amendment privilege against self-incrimination. However, to the extent that amounts to an adverse inference as to material allegations or claims she herself brings, that is the choice she made in filing a civil action.
Gallego served as the president of Hammocks Community Association. On October 26, 2020, Gallego filed a six-count complaint alleging, inter alia, defamation and tortious interference with a business relationship against Perez and Luffi. Subsequently, the State pursued criminal charges resulting in her arrest and active, ongoing criminal proceedings. During discovery in the civil suit, Gallego failed to timely respond to Perez and Luffi's discovery requests, resulting in orders granting motions to compel responses to their discovery requests. Subsequently, instead of complying with the orders compelling discovery, and despite previously indicating that she would not be seeking a stay, Gallego's counsel indicated to Perez and Luffi's counsel that Gallego would invoke her Fifth Amendment right against self-incrimination and sought a stay of proceedings based thereon. The trial court granted Gallego's motion to stay. Perez and Luffi now petition this court for a writ of certiorari to quash the trial court's order.[1]
Perez and Luffi argue that: (1) the trial court's ruling causes irreparable harm because it indefinitely delays their right to assert official immunity; and (2) Gallego improperly used her Fifth Amendment privilege against self-incrimination as both a sword and a shield in contravention of applicable case law resulting in a departure from the essential requirements of law. Gallego argues that: (1) Perez and Luffi are not entitled to certiorari relief because they have shown no irreparable harm; and (2) the trial court did not depart from the essential requirements of law.
As a threshold issue, we first look at whether the imposition of the stay amounts to irreparable harm, irremediable on appeal. Here, in their answer and defenses, Perez and Luffi asserted immunity from suit under section 768.28(9)(a), Florida Statutes. Immunity must be determined at the earliest possible stage of a legal proceeding. See Fla. Highway Patrol v. Jackson, 238 So.3d 430, 433 (Fla. 1st DCA 2018). The delay in such determination caused by the indefinite stay constitutes irreparable harm, irremediable on appeal.[2] Next, we examine whether the trial court departed from the essential requirements of the law in granting a stay based on a plaintiff's assertion of her Fifth Amendment privilege in the face of pending discovery.[3] Importantly, Gallego presented no case to the trial court, and similarly provides no authority in opposition to the petition, in which a court grants a stay at the invitation of a plaintiff seeking to invoke her Fifth Amendment protection against self-incrimination. To the contrary, well-settled law explains that the Fifth Amendment can't be used as a sword and a shield, which is exactly what Gallego attempts to do by asserting Fifth Amendment protections as a basis to stay her lawsuit as a plaintiff. See, e.g., Rollins Burdick Hunter of N.Y., Inc. v. Euroclassics Ltd., 502 So.2d 959, 962 (Fla. 3d DCA 1987) (); Rappaport v. Levy, 696 So.2d 526, 527 (Fla. 3d DCA 1997).
All the cases cited note "special circumstances" warranting a stay where a person, "who is a defendant in both a civil and criminal case, is forced to choose between waiving his [or her] privilege against self-incrimination or losing the civil case on summary judgment." Tribble v. Tew, 760 Fed.Appx. 718, 721 (11th Cir. 2019); see also United States v. Lot 5, Fox Grove, Alachua Cnty., Fla., 23 F.3d 359, 364 (11th Cir. 1994) () (citing United States v. Kordel, 397 U.S. 1, 12, 12 n.27 (1970)).
Gallego therefore fails to justify the stay on two grounds. First, she proffers no case where a stay is granted in favor of a plaintiff asserting her Fifth Amendment privilege. See Waldbaum v. Worldvision Enters., Inc., 84 F.R.D. 95, 97 (S.D.N.Y. 1979) (); see also Arango v. U.S. Dep't of the Treasury, 115 F.3d 922, 926 (11th Cir. 1997) ().[4]
Second, no special circumstances justify granting a stay. Gallego sets forth a series of allegations in her complaint. It's entirely unclear how she would be incriminated in a criminal proceeding by answering discovery pertaining to the claims she brought. See S.E.C. v. Wright, 261 Fed.Appx. 259, 263 (11th Cir. 2008) (). It is worth pointing out that Wright denied a stay on that basis sought by a defendant in the civil action below. Id. at 261. It adds another layer of incredulity where, here, it is the plaintiff who brought the action seeking a blanket stay.
In any event, Gallego would have the right, where appropriate, to assert the Fifth Amendment privilege against...
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