1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HERBERT T. PATTY, Case No. 25-cv-04392-NW
8 Plaintiff, ORDER GRANTING ANTI-SLAPP 9 v. SPECIAL MOTION TO STRIKE
10 ROB BONTA, et al., Re: ECF No. 35 Defendants. 11
12 13 Defendants Heather Allan and Allan & Martelle, LLP (together, “Allan Defendants”) filed 14 a special motion to strike Plaintiff Herbert T. Patty’s first amended complaint pursuant to Cal. Civ. 15 Proc. Code section 425.16, California’s anti-SLAPP statute.1 Mot. to Strike, ECF No. 35. The 16 Allan Defendants ask the Court to “enter a finding that Attorney Allan and her firm are prevailing 17 parties,” under section 425.16. While the Allan Defendants’ motion was pending, Plaintiff filed a 18 second amended complaint and voluntarily dismissed the Allan Defendants. The Court retains 19 jurisdiction over a pending special motion to strike, even after the defendants have been dismissed, 20 for the purpose of designating a “prevailing party” and to award fees and costs. Evans Hotels, 21 LLC v. Unite Here! Loc. 30, No. 23-55692, 2025 WL 17120, at *3 (9th Cir. Jan. 2, 2025), cert. 22 denied, No. 24-1173, 2025 WL 2906506 (U.S. Oct. 14, 2025). 23 Having considered the parties’ briefing and the relevant legal authority, the Court finds this 24 matter suitable for resolution without oral argument. Civil Local Rule 7-1(b). The Court 25 GRANTS the Allan Defendants’ special motion to strike and finds that they are prevailing parties. 26 27 1 I. PROCEDURAL HISTORY 2 This case arises out of two proceedings in Santa Clara County Court against Plaintiff 3 Herbert T. Patty: (1) a criminal case, People v. Herbert Theodore Patty (No. B2303008), and (2) a 4 family court case, Kalila Spain v. Herbert Patty (No. 23FL002984). Compl., ¶ 1, ECF No. 1. 5 Both state court cases stem from Plaintiff’s divorce proceedings and his related interactions with 6 his former spouse and his children. Id. ¶ 2. Plaintiff is an attorney licensed in California. Id. ¶ 16. 7 He is proceeding pro se in this case. 8 On May 22, 2025, Plaintiff brought a series of 42 U.S.C. §§ 1983, 1985 claims and state 9 law claims against the state court judges presiding over his state court proceedings, members of 10 the District Attorney’s office, the County of Santa Clara, and the Attorney General of California. 11 See Compl. Plaintiff additionally sued Defendant Heather Allan, the attorney appointed as 12 Plaintiff’s minor children’s counsel in the state court proceedings, for alleged violation of 13 Plaintiff’s due process and equal protection rights under the Fourteenth Amendment. 14 Plaintiff filed a first amended complaint on August 26, 2025, in which Plaintiff added 15 Allan’s firm, Allan & Martelle, LLP, as a Defendant. See First Amend. Compl., ECF No. 25 16 (“FAC”). Plaintiff alleged that the Allan Defendants violated his children’s right to parentage and 17 Plaintiff’s due process rights under the Fourteenth Amendment. Plaintiff also added state law 18 claims for abuse of process, and aiding and abetting misconduct. Id. 19 The Allan Defendants filed a motion to strike Plaintiff’s claims pursuant to Cal. Civ. Proc. 20 Code § 425.16, California’s anti-SLAPP statute. Mot. to Strike at 1. Plaintiff opposed, and the 21 Allan Defendants filed a reply. ECF Nos. 54, 63. 22 On October 16, 2025, the Court granted four motions to dismiss filed by the other 23 Defendants in this action and the motion to dismiss filed by the Allan Defendants. The Court 24 found that Plaintiff’s complaint did not articulate causes of action in a manner in which the 25 Defendants could reasonably answer. The Court granted Plaintiff leave to amend, but noted that 26 Defendants had raised a variety of compelling arguments in their motions that the Court had not 27 yet addressed, including: the lack of state action alleged in Plaintiff’s § 1983 claims; the lack of a 1 requirements before suing state government employees; and, Plaintiff’s claims against County 2 prosecutors and judicially appointed therapists and advocates are barred by doctrines of immunity. 3 Plaintiff filed a second amended complaint on November 7, 2025. Second Amend. 4 Compl., ECF No. 70 (“SAC”). In the SAC, Plaintiff voluntarily dismissed all claims against the 5 Allan Defendants. Id. ¶ 284. 6 II. DISCUSSION 7 A plaintiff who voluntarily dismisses their complaint after an anti-SLAPP motion has 8 been filed, “cannot escape paying attorney fees and costs if the court determines the motion would 9 have been granted.” Astre v. McQuaid, No. A154945, 2019 WL 5654260, at *5 (Cal. Ct. App. 10 Oct. 31, 2019) (unpublished). “[P]ermitting an eleventh-hour dismissal to eliminate financial 11 liability would undermine the deterrent purpose of the anti-SLAPP statute.” Ross v. Seyfarth 12 Shaw LLP, 96 Cal. App. 5th 722, 733 (2023), reh'g denied (Oct. 17, 2023), reh'g denied (Nov. 8, 13 2023), review filed (Nov. 21, 2023), review denied (Jan. 10, 2024). 14 The Court retains jurisdiction to determine if the Allan Defendants would have prevailed 15 on their motion to strike such that they are able to recover attorneys’ fees. “Where a plaintiff 16 abandons its claims after the defendant files an anti-SLAPP motion, the defendant is entitled to 17 fees and costs if it would have prevailed on the merits of its motion.” Evans Hotels, No. 23- 18 55692, 2025 WL 17120, at *3 (citing Moore v. Liu, 81 Cal. Rptr. 2d 807, 812 (Cal. Ct. App. 19 1999)). “To prevail on a special motion to strike a SLAPP suit, [1] the defendant must ‘make an 20 initial prima facie showing that plaintiff’s suit arises from an act in furtherance of defendant’s 21 right of petition or free speech.’ If this burden is met, [2] the plaintiff must establish a reasonable 22 probability he or she will prevail on the merits.” Ross, 96 Cal. App. 5th at 732 (quoting Braun v. 23 Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1042–1043). “Preadjudication dismissals 24 do not automatically render the defendant the ‘prevailing party’ for purposes of subdivision (c)(1). 25 But upon a determination that the defendant is the prevailing party, the fee award becomes 26 mandatory (subject to limitations on an award in the context of a fully adjudicated motion).” Id. at 27 733. 1 from acts that are protected by the anti-SLAPP statute. Actions such as “any written or oral 2 statement or writing made before a . . . judicial proceeding, or any other official proceeding 3 authorized by law,” are covered by the anti-SLAPP statute. Cal. Civ. Proc. Code § 425.16(e)(1). 4 “[A]ll communicative acts performed by attorneys as part of their representation of a client in a 5 judicial proceeding or other petitioning context are per se protected as petitioning activity by the 6 anti-SLAPP statute.” Cabral v. Martins, 177 Cal.App. 4th 471, 480 (2009). Plaintiff’s claims 7 against the Allan Defendants stem from the Allan Defendants’ representation of, and 8 recommendations for, Plaintiff’s minor children during the underlying state court proceedings. 9 The Allan Defendants’ alleged actions are litigation related activities that fall squarely within the 10 conduct protected by the anti-SLAPP statute. 11 Because the Allan Defendants have met their initial burden, Plaintiff “must establish a 12 reasonable probability [that he] will prevail on the merits.” Ross, 96 Cal. App. 5th at 732. The 13 Court finds that Plaintiff has not demonstrated that he had a reasonable probability of prevailing 14 on the merits of his claims against the Allan Defendants. Plaintiff did not address the Allan 15 Defendants’ federal and state litigation privileges, which encompass all of their activities.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HERBERT T. PATTY, Case No. 25-cv-04392-NW
8 Plaintiff, ORDER GRANTING ANTI-SLAPP 9 v. SPECIAL MOTION TO STRIKE
10 ROB BONTA, et al., Re: ECF No. 35 Defendants. 11
12 13 Defendants Heather Allan and Allan & Martelle, LLP (together, “Allan Defendants”) filed 14 a special motion to strike Plaintiff Herbert T. Patty’s first amended complaint pursuant to Cal. Civ. 15 Proc. Code section 425.16, California’s anti-SLAPP statute.1 Mot. to Strike, ECF No. 35. The 16 Allan Defendants ask the Court to “enter a finding that Attorney Allan and her firm are prevailing 17 parties,” under section 425.16. While the Allan Defendants’ motion was pending, Plaintiff filed a 18 second amended complaint and voluntarily dismissed the Allan Defendants. The Court retains 19 jurisdiction over a pending special motion to strike, even after the defendants have been dismissed, 20 for the purpose of designating a “prevailing party” and to award fees and costs. Evans Hotels, 21 LLC v. Unite Here! Loc. 30, No. 23-55692, 2025 WL 17120, at *3 (9th Cir. Jan. 2, 2025), cert. 22 denied, No. 24-1173, 2025 WL 2906506 (U.S. Oct. 14, 2025). 23 Having considered the parties’ briefing and the relevant legal authority, the Court finds this 24 matter suitable for resolution without oral argument. Civil Local Rule 7-1(b). The Court 25 GRANTS the Allan Defendants’ special motion to strike and finds that they are prevailing parties. 26 27 1 I. PROCEDURAL HISTORY 2 This case arises out of two proceedings in Santa Clara County Court against Plaintiff 3 Herbert T. Patty: (1) a criminal case, People v. Herbert Theodore Patty (No. B2303008), and (2) a 4 family court case, Kalila Spain v. Herbert Patty (No. 23FL002984). Compl., ¶ 1, ECF No. 1. 5 Both state court cases stem from Plaintiff’s divorce proceedings and his related interactions with 6 his former spouse and his children. Id. ¶ 2. Plaintiff is an attorney licensed in California. Id. ¶ 16. 7 He is proceeding pro se in this case. 8 On May 22, 2025, Plaintiff brought a series of 42 U.S.C. §§ 1983, 1985 claims and state 9 law claims against the state court judges presiding over his state court proceedings, members of 10 the District Attorney’s office, the County of Santa Clara, and the Attorney General of California. 11 See Compl. Plaintiff additionally sued Defendant Heather Allan, the attorney appointed as 12 Plaintiff’s minor children’s counsel in the state court proceedings, for alleged violation of 13 Plaintiff’s due process and equal protection rights under the Fourteenth Amendment. 14 Plaintiff filed a first amended complaint on August 26, 2025, in which Plaintiff added 15 Allan’s firm, Allan & Martelle, LLP, as a Defendant. See First Amend. Compl., ECF No. 25 16 (“FAC”). Plaintiff alleged that the Allan Defendants violated his children’s right to parentage and 17 Plaintiff’s due process rights under the Fourteenth Amendment. Plaintiff also added state law 18 claims for abuse of process, and aiding and abetting misconduct. Id. 19 The Allan Defendants filed a motion to strike Plaintiff’s claims pursuant to Cal. Civ. Proc. 20 Code § 425.16, California’s anti-SLAPP statute. Mot. to Strike at 1. Plaintiff opposed, and the 21 Allan Defendants filed a reply. ECF Nos. 54, 63. 22 On October 16, 2025, the Court granted four motions to dismiss filed by the other 23 Defendants in this action and the motion to dismiss filed by the Allan Defendants. The Court 24 found that Plaintiff’s complaint did not articulate causes of action in a manner in which the 25 Defendants could reasonably answer. The Court granted Plaintiff leave to amend, but noted that 26 Defendants had raised a variety of compelling arguments in their motions that the Court had not 27 yet addressed, including: the lack of state action alleged in Plaintiff’s § 1983 claims; the lack of a 1 requirements before suing state government employees; and, Plaintiff’s claims against County 2 prosecutors and judicially appointed therapists and advocates are barred by doctrines of immunity. 3 Plaintiff filed a second amended complaint on November 7, 2025. Second Amend. 4 Compl., ECF No. 70 (“SAC”). In the SAC, Plaintiff voluntarily dismissed all claims against the 5 Allan Defendants. Id. ¶ 284. 6 II. DISCUSSION 7 A plaintiff who voluntarily dismisses their complaint after an anti-SLAPP motion has 8 been filed, “cannot escape paying attorney fees and costs if the court determines the motion would 9 have been granted.” Astre v. McQuaid, No. A154945, 2019 WL 5654260, at *5 (Cal. Ct. App. 10 Oct. 31, 2019) (unpublished). “[P]ermitting an eleventh-hour dismissal to eliminate financial 11 liability would undermine the deterrent purpose of the anti-SLAPP statute.” Ross v. Seyfarth 12 Shaw LLP, 96 Cal. App. 5th 722, 733 (2023), reh'g denied (Oct. 17, 2023), reh'g denied (Nov. 8, 13 2023), review filed (Nov. 21, 2023), review denied (Jan. 10, 2024). 14 The Court retains jurisdiction to determine if the Allan Defendants would have prevailed 15 on their motion to strike such that they are able to recover attorneys’ fees. “Where a plaintiff 16 abandons its claims after the defendant files an anti-SLAPP motion, the defendant is entitled to 17 fees and costs if it would have prevailed on the merits of its motion.” Evans Hotels, No. 23- 18 55692, 2025 WL 17120, at *3 (citing Moore v. Liu, 81 Cal. Rptr. 2d 807, 812 (Cal. Ct. App. 19 1999)). “To prevail on a special motion to strike a SLAPP suit, [1] the defendant must ‘make an 20 initial prima facie showing that plaintiff’s suit arises from an act in furtherance of defendant’s 21 right of petition or free speech.’ If this burden is met, [2] the plaintiff must establish a reasonable 22 probability he or she will prevail on the merits.” Ross, 96 Cal. App. 5th at 732 (quoting Braun v. 23 Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1042–1043). “Preadjudication dismissals 24 do not automatically render the defendant the ‘prevailing party’ for purposes of subdivision (c)(1). 25 But upon a determination that the defendant is the prevailing party, the fee award becomes 26 mandatory (subject to limitations on an award in the context of a fully adjudicated motion).” Id. at 27 733. 1 from acts that are protected by the anti-SLAPP statute. Actions such as “any written or oral 2 statement or writing made before a . . . judicial proceeding, or any other official proceeding 3 authorized by law,” are covered by the anti-SLAPP statute. Cal. Civ. Proc. Code § 425.16(e)(1). 4 “[A]ll communicative acts performed by attorneys as part of their representation of a client in a 5 judicial proceeding or other petitioning context are per se protected as petitioning activity by the 6 anti-SLAPP statute.” Cabral v. Martins, 177 Cal.App. 4th 471, 480 (2009). Plaintiff’s claims 7 against the Allan Defendants stem from the Allan Defendants’ representation of, and 8 recommendations for, Plaintiff’s minor children during the underlying state court proceedings. 9 The Allan Defendants’ alleged actions are litigation related activities that fall squarely within the 10 conduct protected by the anti-SLAPP statute. 11 Because the Allan Defendants have met their initial burden, Plaintiff “must establish a 12 reasonable probability [that he] will prevail on the merits.” Ross, 96 Cal. App. 5th at 732. The 13 Court finds that Plaintiff has not demonstrated that he had a reasonable probability of prevailing 14 on the merits of his claims against the Allan Defendants. Plaintiff did not address the Allan 15 Defendants’ federal and state litigation privileges, which encompass all of their activities. Under 16 California law, a “publication or broadcast” made as part of a “judicial proceeding” is privileged. 17 Cal. Civ. Code § 47(b) (West). “The usual formulation is that the privilege applies to any 18 communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other 19 participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some 20 connection or logical relation to the action. The privilege is not limited to statements made during 21 a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” Action 22 Apartment Assn., Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1241 (2007) (internal citations 23 omitted). Similarly, under the federal Noerr–Pennington doctrine, “in the litigation context, not 24 only petitions sent directly to the court in the course of litigation, but also ‘conduct incidental to 25 the prosecution of the suit’ is protected.” Sosa v. DIRECTV, Inc., 437 F.3d 923, 934 (9th Cir. 26 2006) (quoting Columbia Pictures Indus., Inc. v. Prof'l Real Estate Investors, Inc., 944 F.2d 1525, 27 1528–29 (9th Cir.1991)); see also Litrinium, Inc. v. MACOM Tech. Sols. Inc., No. 19-1674-JVS, ] doctrine includes communications made to the court during the course of a lawsuit.”). Plaintiff 2 || challenges the Allan Defendants’ statements and conduct related to Allan’s representation of 3 Plaintiff's children in the underlying state court cases. Because the Allan Defendants’ alleged 4 || conduct was made during and for the purpose of judicial proceedings, Plaintiffs claims against the 5 || Allan Defendants are barred by the litigation privileges under state and federal law. Plaintiff has 6 || not met his burden to show that he had a reasonable probability of prevailing on the merits of his 7 || claims against the Allan Defendants, prior to dismissing them from the SAC. 8 || I. CONCLUSION 9 The Court GRANTS the Allan Defendants’ special motion to strike and FINDS that the 10 || Allan Defendants are prevailing parties for the purposes of § 425.16. 11 If the Allan Defendants intend to seek reasonable attorneys’ fees, they must do so by 12 || motion by December 15, 2025. Plaintiff may file an opposition within 14 days of the date the 13 motion is filed per the Civil Local Rules. IT IS SO ORDERED. 3 || Dated: November 28, 2025 , Noél Wise 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28