Third District Court of Appeal

State of Florida 

Opinion filed January 11, 2023.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-0267

Lower Tribunal No. 20-23064

________________

Ivette Perez, et al.,

Petitioners,

vs.

Marglli Gallego, et al.,

Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, 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. 

BOKOR, J.
2

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. 
3

BACKGROUND

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

1 “Certiorari review is warranted when a non-final order (1) cannot be 

remedied on postjudgment appeal, (2) results in material injury for the 

remainder of the case, and (3) departs from the essential requirements of 

law.” Ferro v. ECI Telecom, Inc., 314 So. 3d 711, 713 (Fla. 3d DCA 2021)

(citation omitted). The first two prongs are jurisdictional; therefore, the merits 

of a certiorari petition cannot be considered absent a determination of 
4

ANALYSIS

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 selfincrimination 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

 

material injury irremediable on appeal. Farach v. Rivero, 305 So. 3d 54, 56 

(Fla. 3d DCA 2019).

2 The Florida Supreme Court explained that the denial of qualified immunity 

by summary judgment warranted interlocutory, certiorari review. See Keck v. 

Eminisor, 104 So. 3d 359, 366 (Fla. 2012) (“[A]n order denying summary 
5

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) (“This 

means that a plaintiff seeking affirmative relief in a civil action may not invoke 

the fifth amendment and refuse to comply with the defendant's discovery 

judgment based on a claim of individual immunity under section 768.28(9)(a) 

is subject to interlocutory review where the issue turns on a question of 

law.”). It then stands to reason that the failure of the trial court to address 

qualified immunity through the imposition of an indefinite stay constitutes the

same type of irreparable harm reviewable by certiorari. 

3 We note that one of the plaintiffs below, Hammocks Community 

Association, Inc., is a corporation incapable of asserting a Fifth Amendment 

claim. We also note that Gallego didn’t invoke the Fifth Amendment in 

response to an inquiry of the court or in response to discovery. Nonetheless, 

for purposes of the analysis here, we will assume arguendo that Gallego 

properly asserted her intention to invoke her Fifth Amendment protections 

as the basis for seeking the stay on review. 
6

requests, thereby thwarting the defendant's defenses.”); 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 selfincrimination or losing the civil case on summary judgment.” Tribble v. Tew, 

760 F. App’x 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) (permitting a 

stay of a civil proceeding only where “special circumstances” require it “in 

the interest of justice”) (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) (denying plaintiff’s motion to stay discovery 

pending resolution of criminal charges and noting that the cases plaintiff 

relied on “involved defendants, not plaintiffs, in civil proceedings”); see also

Arango v. U.S. Dep’t of the Treasury, 115 F.3d 922, 926 (11th Cir. 1997) 

(explaining that the assertion of the privilege can’t be used as both a shield 
7

against self-incrimination and a sword freeing the party from her own burden 

of proof).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 F. App’x 

259, 263 (11th Cir. 2008) (explaining that the “blanket assertion of the 

privilege against self-incrimination is an inadequate basis for the issuance of 

a stay”). 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 self-incrimination with respect 

to specific questions or discovery and the court would have the right to make 

the appropriate inference, or strike pleadings to the extent such an assertion 

4 Much of the caselaw cited must appear familiar to the parties. That’s 

because the federal district court for the Southern District of Florida 

adjudicated a similar motion to stay in related federal proceedings. See

Gallego v. Perez, 2022 WL 783197 (S.D. Fla. March 15, 2022). Judge 

Bloom’s analysis in lifting a previously entered stay provides an excellent 

exposition for the lack of authority to enter a stay in favor of Gallego under 

these circumstances. 
8

goes to the heart of the relief sought. See Aguila v. Frederic, 306 So. 3d 

1166, 1172 n.6 (Fla. 3d DCA 2020) (“While the order under review departs 

from the essential requirements of law, our ruling is not intended to divest 

the trial court of discretion to effect any other remedy to properly address the 

concerns involved with the invocation of the privilege against selfincrimination, including the decision to allow for adverse inferences.”); see

also Kerben v. Intercontinental Bank, 573 So. 2d 976, 978 (Fla. 5th DCA 

1991) (“When a plaintiff in a civil action invokes the Fifth Amendment

privilege, courts often dismiss the plaintiff’s action or strike plaintiff’s 

pleadings.”) (citations omitted). 

In sum, the trial court departed from the essential requirements of law 

in granting a stay under these circumstances and the failure to adjudicate 

the qualified immunity claim of the officers constituted irreparable harm. 

Therefore, we grant the petition and quash the trial court’s order granting a 

stay of the proceedings below.

Petition granted; order quashed.