TOM JENSEN v. TIMOTHY THOMAS (2025)

ORDER DENYING MOTION TO STAY AND MOTION TO STRIKE, AND GRANTING MOTION TO DISMISS AND MOTION TO ENLARGE TIME

Plaintiff Tom Jensen, who is representing himself, brings various federal constitutional claims under 42 U.S.C. § 1983 and state law claims, primarily stemming from a physical altercation between Plaintiff and Defendant Timothy Thomas, the Director of Public Safety at Peralta Community College District, in May 2022. Jensen alleges that he had a series of arguments with Thomas after Thomas threatened to tow Plaintiff's motor home from its parking spot near the Peralta campus, after which Thomas tackled Jensen and took his cell phone after Jensen tried to use his phone to take Thomas's photograph. Thomas was arrested, and the Alameda County District Attorney's Office charged him with misdemeanor battery, elder abuse, and grand theft of the phone. Jensen sued Thomas and Thomas's criminal defense attorney Edwin Prather, as well as other defendants.

Prather moves to dismiss a supplemental complaint filed by Jensen (Dkt. No. 136) and seeks to enlarge the time for the filing his answer to the original complaint and his motion to dismiss the supplemental complaint (Dkt. No. 150). Jensen opposes both motions, seeks to stay the case pending appeal (Dkt. No. 142), and seeks to strike Prather's answer and motion to dismiss (Dkt. No. 146). For the reasons discussed below, Jensen's motion to stay is DENIED, Jensen's motion to strike and for default judgment or for judgment on the pleadings is DENIED, Prather's motion to enlarge time is GRANTED, and Prather's motion to dismiss the Supplemental Complaint is GRANTED WITHOUT LEAVE TO AMEND. This order assumes the reader is familiar with the facts of the case, the applicable legal standards, and the arguments made by the parties.

I. PROCEDURAL HISTORY

On May 3, 2024, motions to dismiss were granted as to all claims against a number of defendants (the “Dismissed Defendants”) and as to some but not all of the claims against Thomas and Prather (the “Defendants”). (Dkt. No. 82, “Dismissal Order,” at 19-20.)¹ The Court ordered Jensen to file any amended complaint by June 3, 2024, and set the response deadline as June 24, 2024. (Id. at 20.) Jensen did not file an amended complaint, but on June 3, 2024, Jensen sought leave to file a supplemental complaint. (Dkt. No. 87, “Supplemental Complaint.”) On June 25, 2024, Thomas filed an answer to the Complaint, (Dkt. No. 96), but Prather did not respond to the Complaint at that time. On August 15, 2024, Jensen's request to file a Supplemental Complaint was granted in part. (Dkt. No. 106.) Jensen's negligence and negligence per se claim were permitted to proceed, with the supporting allegations identified by paragraphs number. (Id. at 1.) Thomas and Prather were ordered to respond to the Supplemental Complaint within 21 days. (Id. at 3.)

On August 16, 2024, Jensen filed a notice of appeal related the judgment issued pursuant to the Dismissal Order. (Dkt. No. 110; see also Dkt. No. 126.) Jensen also sought to have the Court to amend the judgment. (Dkt. Nos. 119, 121.) In light of Jensen's filings, Defendants' deadline to respond to the Supplemental Complaint was briefly stayed (Dkt. No. 120), but on January 14, 2025, the request to amend the judgment was denied, and Defendants were ordered to respond to the Supplemental Complaint by February 4, 2025. (Dkt. No. 128.) Both Defendants responded to the Supplemental Complaint on or before February 4, 2025. (Dkt. Nos. 136, 140.)

On February 7, 2025, Jensen filed an amended notice of appeal that states his intention to add the “the Order denying Plaintiff's tolling Motion to Alter or Amend the Judgment entered on 01/14/2025, Dkt. No. 128, ․ and to add defendant Edwin Prather as an appellee” with respect to the “dismissal of all federal claims against him.” (Dkt. No 141 at 1.)²

II. MOTION TO STAY

Jensen seeks to stay the entire action while his appeal of the Dismissal Order and related judgment is adjudicated, to avoid piece meal litigation. (Dkt. No. 142 at 4.) The Landis standard is the most appropriate guide in this case, where there is a request for a stay based on an appeal of a final judgment, but where other claims have not been dismissed. See, e.g., 23andMe, Inc. v. Ancestry.com DNA, LLC, No. 18-cv-02791-EMC, 2018 WL 5793473, at *3 (N.D. Cal. Nov. 2, 2018) (applying Landis v. North American Co., 299 U.S. 248, 57 (1936) and declining to stay case pending appeal), aff'd, 778 F. App'x 966 (Fed. Cir. 2019); Nat'l Union Fire Ins. Co. of Pittsburg, PA v. Ready Pac Foods, Inc., No. 09-cv-3220, 2011 WL 1790033 at *5 (C.D. Cal. May 9, 2011) (“STAY[ing] further proceedings in this case pending resolution of any appeal taken from the Rule 54(b) Judgment” under Landis). Although Landis is generally applied where there is a request to stay proceedings pending a decision in a different case, Landis broadly states that “the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis, 299 U.S. at 254.

Under Landis, a court generally considers the hardships that would be suffered by the parties if a stay were or were not granted, as well as judicial economy. See, e.g., Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (indicating, that where a Landis stay is at issue, a court considers “the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay”).

Given the circumstances of this case, granting a stay will not serve judicial economy, and denying a stay will not result in undue hardship. There is no obvious hardship or inefficiency if discovery, dispositive motions, and even trial proceeds with respect to the alleged conduct of Thomas and Prather in the first instance.³ Should the Ninth Circuit reverse the dismissal, the case schedule will be modified to allow discovery and trial relating to the Dismissed Defendants. Jensen expresses concern about his ability to litigate the pending appeal and his remaining claims against Prather and Thomas at the same time, in light of Jensen's age and health. Those concerns are better addressed by seeking extensions of time if Jensen can show that he has been diligently pursuing the case but is unable to meet deadlines due to good cause based on those factors. Those concerns do not provide a basis for calling a complete halt to the litigation on the remaining claims. Therefore, Jensen's motion to stay is denied.

III. MOTION TO STRIKE AND MOTION TO ENLARGE TIME

Jensen seeks to strike as untimely (i) Prather's answer to the Complaint and (ii) Prather's Motion to Dismiss the Supplemental Complaint, and seeks a default judgment or judgment on the pleadings against Prather. (Dkt. No 146.) First, as explained in Section I, Prather's Motion to Dismiss the Supplemental Complaint was timely filed before February 4, 2025. Therefore, Jensen's motion is denied as it relates the Supplemental Complaint.

With regard to Prather's answer to the Complaint, Jensen is correct that Prather's answer is untimely. Jensen's deadline to file any amended Complaint was June 3, 2024. When that deadline passed without any amended complaint being filed—and Jensen instead sought leave to file a supplemental complaint—Prather could have requested a stay of his obligation to answer the Complaint by June 24, 2024, pending resolution of Jensen's motion. He did not do so. Subsequent orders staying and continuing response deadlines expressly related only to the Supplemental Complaint, not the original Complaint. (See Dkt. Nos. 106, 120, 128.) Therefore, Prather's answer was untimely.

However, Prather's motion to enlarge time is granted for good cause, and Jensen's request to strike and for entry of default judgment, or for judgment on the pleadings, is denied. Under Federal Rule of Civil Procedure 6(b)(1)(B), “the court may for good cause, extend the time” to file an answer on a “motion made after the time has expired if the party failed to act because of excusable neglect.” Prather argues that Jensen's request to file the Supplemental Complaint, his subsequent appeal, his motion to amend the judgment, and his multiple requests for reconsideration—all of which related to the Dismissal Order—“created confusion” and Prather understood that his deadline to answer had been stayed. (Dkt. No. 150-1 at 9.) While Prather's understanding was incorrect, in light of the overlapping appeal, motions, and applications filed by Jensen challenging the Dismissal Order, Prather's confusion and resulting failure to timely answer amounts to excusable neglect.⁴

Furthermore, Jensen's requested relief of either default judgment or judgment on the pleadings in his favor is not appropriate where Prather has answered and where there is no evidence that Prather “acted with bad faith,” with an “intention to take advantage of the opposing party, interfere with judicial decisionmaking, or otherwise manipulate the legal process.’ ” United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1092 (9th Cir. 2010). While Jensen argues that bad faith should be inferred based on the timing of Prather's answer—which was filed around the same time as the motion to dismiss—it is equally likely that Prather's filings were made in good faith in response to the January 14, 2025 order, and that Prather was genuinely confused about his obligations. (See Dkt. No. 152 at 9.) Default judgment should not be granted where there is an “explanation ․ inconsistent with a devious, deliberate, willful, or bad faith failure to respond.” Mesle, 615 F.3d at 1092 (citation omitted). Furthermore, because Prather's answer will not be stricken, Jensen's request for judgment on the pleadings is denied. See Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1159 (9th Cir. 2015) (“a plaintiff is not entitled to judgment on the pleadings if the defendant's answer raises issues of fact or affirmative defenses”). Therefore, Prather's motion to enlarge time is granted, and Jensen's motion to strike and for default judgment or judgment on the pleadings is denied.

IV. MOTION TO DISMISS 5

Prather's motion to dismiss the Supplemental Complaint is granted because Prather's alleged misconduct is subject to litigation privilege. The allegations in the Supplemental Complaint, as limited by the August 15, 2025 Order, relate solely to communications in diversion proceedings in Thomas's criminal case. (See Dkt. Nos. 87, 106.) Jensen alleges that Prather filed a diversion petition for Thomas that omitted information relating to Thomas's dishonesty, Thomas's recent arrest for DUI and concealed carry, and other post-arrest misconduct by Thomas and Prather. (Dkt. No. 87 ¶¶ 9, 11.) The petition also allegedly falsely stated that “[Jensen] approached and confronted” Thomas as Thomas was “attempting to engage in his duties.” (Id. ¶ 10.) The Supplemental Complaint alleges that Prather, through an agent, made similar misleading statements and omissions at a hearing on the diversion petition. (Id. ¶ 13.)

To invoke the California litigation privilege under Civil Code Section 47—which protects communications made in judicial proceedings from tort liability—the party claiming the privilege must show that the challenged communications were “(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” Silberg v. Anderson, 786 P.2d 365, 369 (Cal. 1990). The privilege has been applied in cases where defendants are alleged to have presented false testimony or prepared false documents. See Rusheen v. Cohen, 128 P.3d 713, 719, 722 (Cal. 2006) (collecting cases and finding that the privilege applied because the “gravamen of the action” was the “use of allegedly perjured declarations of service”). Furthermore, “the litigation privilege is absolute[,] applies regardless of malice,” and “has been given broad application.” Id. at 722. The bar applies to negligence claims. Huy Thanh Vo v. Nelson & Kennard, 931 F. Supp. 2d 1080, 1096 (E.D. Cal. 2013) (“the privilege bars actions for simple negligence, such as plaintiff is alleging”); Johnson v. Liberty Mut. Ins., No. 12-cv-01851-LHK, 2013 WL 415585, at *5 (N.D. Cal. Jan. 31, 2013) (same).

Prather's alleged misstatements fall squarely within the protection afforded by Section 47. The Supplemental Complaint makes clear that the alleged misstatements and omissions were communications directed at a court, by attorneys representing Thomas, for the purpose of achieving a litigation objective (diversion), and are logically connected to said objective. Jensen argues that where an attorney's conduct is alleged to diverge from the California Professional Code of Conduct, the litigation privilege does not apply. (Dkt. No. 147 at 5.) However, this argument is inconsistent with precedent. See Welk Resort Grp. Inc. v. Reed Hein & Assocs., LLC, No. 17-cv-01499, 2019 WL 1242446, at *8 (S.D. Cal. Mar. 18, 2019) (collecting California state court cases finding that “the fact that the underlying attorney conduct is alleged to be unethical or unlawful does not stand in the way of the litigation privilege”); see also Kashian v. Harriman, 120 Cal. Rptr. 2d 576, 592 (Ct. App. 2002) (the privilege applies “regardless whether the communication was made with malice or the intent to harm”). Additionally, there is no legal basis for Jensen's arguments that California's well-established litigation privilege is preempted by federal law, is unconstitutional, does not apply to a victim of a crime by a state actor, or does not apply to an individual who was otherwise not a party to the litigation in which the privileged statements were made.

Finally, Jensen argues that his allegations regarding Prather's statements to the press are not covered by litigation privilege. (Dkt. No. 147 at 4-5.) However, this alleged misconduct is only part of the Supplemental Complaint to the extent it is alleged to have been omitted from the diversion petition. (See Dkt. No. 87 ¶ 11.) The issue of whether the diversion petition discloses or fails to disclose certain non-litigation misconduct has no bearing on the applicability of the privilege to the statements in the diversion petition.

Because the alleged misstatements are subject to litigation privilege, Prather's motion to dismiss the Supplemental Complaint is granted. The Court does not reach Prather's alternate grounds for dismissal. Dismissal is without leave to amend because further amendment would be futile in light of the broad applicability of the litigation privilege. See Huy Thanh Vo, 931 F. Supp. 2d at 1096 (dismissing negligence claim without leave to amend based on litigation privilege).

V. CONCLUSION

For the forgoing reasons, Jensen's motion to stay (Dkt. No. 142) is DENIED, Jensen's motion to strike and for default judgment or for judgment on the pleadings (Dkt. No. 146) is DENIED, Prather's motion to enlarge time (Dkt. No. 150) is GRANTED, and Prather's motion to dismiss the Supplemental Complaint (Dkt. No. 136) is GRANTED WITHOUT LEAVE TO AMEND.

IT IS SO ORDERED.

FOOTNOTES

1.   All citations to page numbers refer to ECF pagination.

2.   Jensen has not sought leave to file an interlocutory appeal regarding the dismissal of his federal claims against Prather, and no judgment under Federal Rule of Civil Procedure 54(b) has been entered with regard to these claims. Therefore, it does not appear that the claims relating to Prather are properly subject to appeal. See Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738, 747 (9th Cir. 2008) (“A district court order is [ ] not appealable unless it disposes of all claims as to all parties or unless judgment is entered in compliance with Federal Rule of Civil Procedure 54(b).”).

3.   The above analysis does not consider Jensen's attempt to add the dismissal of his federal claims against Prather to his pending appeal, as the dismissal of those claims is not properly subject to appeal at this time. See supra n. 2.

4.   Jensen contends that this is not the first instance of delay or untimeliness by Prather. (See Dkt. No. 155 at 3 (stating that Prather failed to timely serve his initial disclosures).) If that is accurate, should Prather fail to comply with court-imposed deadlines in the future, the Court may consider sanctions commensurate with any harm suffered by Jensen as a result of an unexcused delay.

RITA F. LIN United States District Judge