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There’s no question it was the city-owned pickup that pinned 4-year-old Elizabeth Dominguez against the wall of a pizza parlor. But in the heated battle over who should be held accountable for Elizabeth’s death in 2003, lawyers defending San Francisco against a $25 million civil suit have an unexpected problem: The driver’s criminal defense attorney won’t let his client testify. The city’s civil trial heads into a courtroom today, but Muni worker Sebastian Garcia is facing a vehicular manslaughter charge in a trial slated for next month. With Garcia expected to take the Fifth in the civil case, city lawyers have a big hole in their defense. City Attorney Dennis Herrera’s office didn’t realize it faced this conundrum until last month, when it went into a last-minute scramble to get the civil trial put on hold until after the criminal proceeding. Garcia was driving a city truck when it collided with another car, then hit Elizabeth and injured two others. Garcia — and city attorneys — have argued that the initial crash, and the subsequent fatality and injuries, are the fault of the other driver. That driver has not faced criminal charges, but the city has filed a cross-complaint against him in the civil matter. Garcia’s criminal defense lawyer, Robert Dunlap, has told the court he couldn’t let his client testify in the civil case. “The criminal charges are serious and unresolved,” he wrote in a declaration filed by the city last month. Dunlap told the court that while he’d told the plaintiffs’ lawyers “some time ago” that he did not anticipate Garcia would take the Fifth Amendment if he were deposed, “since that time I have reconsidered my position.” His client faces up to a year in jail if convicted. Dunlap was on vacation last week and could not be reached for comment. Deputy City Attorney Karen Kirby has argued that the courts are forcing Garcia to unfairly choose between asserting his Fifth Amendment rights and defending himself (and the city) against liability. When a local judge wouldn’t buy it, the city asked an appeal court to intervene. The First District Court of Appeal turned the city down flat, rejecting its request without elaboration four days ago. Kirby has told the court that she had been under the impression for months that the criminal case would be over and done with by today’s civil trial date. It wasn’t until June 9 that she talked to Dunlap and discovered the criminal trial had been pushed back to August, she added. Kevin Boyle, a lawyer for the plaintiffs, countered that waiting for the manslaughter trial to finish could delay his clients’ claims indefinitely if Garcia’s criminal case were to go up on appeal. “Their strategy is to delay paying money as long as humanly possible,” Boyle said. Panish, Shea & Boyle is representing Elizabeth’s parents, as well as two others injured alongside her — a girl and her grandmother — in Dominguez v. San Francisco, 422963. City attorney spokeswoman Alexis Truchan expressed sympathy for the victims, but said the city would not comment on the substance of the case before the trial. Once the trial starts, Boyle said, the issue of Garcia’s testimony may come up in another way. Shortly after the accident, but before he was facing a criminal case, Garcia testified in an administrative proceeding at the Department of Motor Vehicles to get his driver’s license back. Boyle said he wants that transcript admitted as evidence, and says the city has filed a motion to try to keep it out. “He’s already gone on the record,” Boyle said. “He’s already told his story.”

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