Patty v. Kuhnle et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
HERBERT T. PATTY,
Plaintiff,
v.
ROB BONTA, et al.,
Defendants.
Case No. 25-cv-04392-NW
ORDER GRANTING ANTI-SLAPP
SPECIAL MOTION TO STRIKE
Re: ECF No. 35
Defendants Heather Allan and Allan & Martelle, LLP (together, “Allan Defendants”) filed
a special motion to strike Plaintiff Herbert T. Patty’s first amended complaint pursuant to Cal. Civ.
Proc. Code section 425.16, California’s anti-SLAPP statute.1 Mot. to Strike, ECF No. 35. The
Allan Defendants ask the Court to “enter a finding that Attorney Allan and her firm are prevailing
parties,” under section 425.16. While the Allan Defendants’ motion was pending, Plaintiff filed a
second amended complaint and voluntarily dismissed the Allan Defendants. The Court retains
jurisdiction over a pending special motion to strike, even after the defendants have been dismissed,
for the purpose of designating a “prevailing party” and to award fees and costs. Evans Hotels,
LLC v. Unite Here! Loc. 30, No. 23-55692, 2025 WL 17120, at *3 (9th Cir. Jan. 2, 2025), cert.
denied, No. 24-1173, 2025 WL 2906506 (U.S. Oct. 14, 2025).
Having considered the parties’ briefing and the relevant legal authority, the Court finds this
matter suitable for resolution without oral argument. Civil Local Rule 7-1(b). The Court
GRANTS the Allan Defendants’ special motion to strike and finds that they are prevailing parties.
1 “SLAPP” is an acronym for Strategic Lawsuits against Public Participation.
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United States District Court
Northern District of California
I. 	PROCEDURAL HISTORY
This case arises out of two proceedings in Santa Clara County Court against Plaintiff
Herbert T. Patty: (1) a criminal case, People v. Herbert Theodore Patty (No. B2303008), and (2) a
family court case, Kalila Spain v. Herbert Patty (No. 23FL002984). Compl., ¶ 1, ECF No. 1.
Both state court cases stem from Plaintiff’s divorce proceedings and his related interactions with
his former spouse and his children. Id. ¶ 2. Plaintiff is an attorney licensed in California. Id. ¶ 16.
He is proceeding pro se in this case.
On May 22, 2025, Plaintiff brought a series of 42 U.S.C. §§ 1983, 1985 claims and state
law claims against the state court judges presiding over his state court proceedings, members of
the District Attorney’s office, the County of Santa Clara, and the Attorney General of California.
See Compl. Plaintiff additionally sued Defendant Heather Allan, the attorney appointed as
Plaintiff’s minor children’s counsel in the state court proceedings, for alleged violation of
Plaintiff’s due process and equal protection rights under the Fourteenth Amendment.
Plaintiff filed a first amended complaint on August 26, 2025, in which Plaintiff added
Allan’s firm, Allan & Martelle, LLP, as a Defendant. See First Amend. Compl., ECF No. 25
(“FAC”). Plaintiff alleged that the Allan Defendants violated his children’s right to parentage and
Plaintiff’s due process rights under the Fourteenth Amendment. Plaintiff also added state law
claims for abuse of process, and aiding and abetting misconduct. Id.
The Allan Defendants filed a motion to strike Plaintiff’s claims pursuant to Cal. Civ. Proc.
Code § 425.16, California’s anti-SLAPP statute. Mot. to Strike at 1. Plaintiff opposed, and the
Allan Defendants filed a reply. ECF Nos. 54, 63.
On October 16, 2025, the Court granted four motions to dismiss filed by the other
Defendants in this action and the motion to dismiss filed by the Allan Defendants. The Court
found that Plaintiff’s complaint did not articulate causes of action in a manner in which the
Defendants could reasonably answer. The Court granted Plaintiff leave to amend, but noted that
Defendants had raised a variety of compelling arguments in their motions that the Court had not
yet addressed, including: the lack of state action alleged in Plaintiff’s § 1983 claims; the lack of a
state policy alleged in Plaintiff’s Monell claim; Plaintiff’s failure to exhaust administrative
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requirements before suing state government employees; and, Plaintiff’s claims against County
prosecutors and judicially appointed therapists and advocates are barred by doctrines of immunity.
Plaintiff filed a second amended complaint on November 7, 2025. Second Amend.
Compl., ECF No. 70 (“SAC”). In the SAC, Plaintiff voluntarily dismissed all claims against the
Allan Defendants. Id. ¶ 284.
II. 	DISCUSSION
A plaintiff who voluntarily dismisses their complaint after an anti-SLAPP motion has
been filed, “cannot escape paying attorney fees and costs if the court determines the motion would
have been granted.” Astre v. McQuaid, No. A154945, 2019 WL 5654260, at *5 (Cal. Ct. App.
Oct. 31, 2019) (unpublished). “[P]ermitting an eleventh-hour dismissal to eliminate financial
liability would undermine the deterrent purpose of the anti-SLAPP statute.” Ross v. Seyfarth
Shaw LLP, 96 Cal. App. 5th 722, 733 (2023), reh'g denied (Oct. 17, 2023), reh'g denied (Nov. 8,
2023), review filed (Nov. 21, 2023), review denied (Jan. 10, 2024).
The Court retains jurisdiction to determine if the Allan Defendants would have prevailed
on their motion to strike such that they are able to recover attorneys’ fees. “Where a plaintiff
abandons its claims after the defendant files an anti-SLAPP motion, the defendant is entitled to
fees and costs if it would have prevailed on the merits of its motion.” Evans Hotels, No. 23-
55692, 2025 WL 17120, at *3 (citing Moore v. Liu, 81 Cal. Rptr. 2d 807, 812 (Cal. Ct. App.
1999)). “To prevail on a special motion to strike a SLAPP suit, [1] the defendant must ‘make an
initial prima facie showing that plaintiff’s suit arises from an act in furtherance of defendant’s
right of petition or free speech.’ If this burden is met, [2] the plaintiff must establish a reasonable
probability he or she will prevail on the merits.” Ross, 96 Cal. App. 5th at 732 (quoting Braun v.
Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1042–1043). “Preadjudication dismissals
do not automatically render the defendant the ‘prevailing party’ for purposes of subdivision (c)(1).
But upon a determination that the defendant is the prevailing party, the fee award becomes
mandatory (subject to limitations on an award in the context of a fully adjudicated motion).” Id. at
733.
Here, the Allan Defendants have made a prima facie showing that Plaintiff’s claims arise
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from acts that are protected by the anti-SLAPP statute. Actions such as “any written or oral
statement or writing made before a . . . judicial proceeding, or any other official proceeding
authorized by law,” are covered by the anti-SLAPP statute. Cal. Civ. Proc. Code § 425.16(e)(1).
“[A]ll communicative acts performed by attorneys as part of their representation of a client in a
judicial proceeding or other petitioning context are per se protected as petitioning activity by the
anti-SLAPP statute.” Cabral v. Martins, 177 Cal.App. 4th 471, 480 (2009). Plaintiff’s claims
against the Allan Defendants stem from the Allan Defendants’ representation of, and
recommendations for, Plaintiff’s minor children during the underlying state court proceedings.
The Allan Defendants’ alleged actions are litigation related activities that fall squarely within the
conduct protected by the anti-SLAPP statute.
Because the Allan Defendants have met their initial burden, Plaintiff “must establish a
reasonable probability [that he] will prevail on the merits.” Ross, 96 Cal. App. 5th at 732. The
Court finds that Plaintiff has not demonstrated that he had a reasonable probability of prevailing
on the merits of his claims against the Allan Defendants. Plaintiff did not address the Allan
Defendants’ federal and state litigation privileges, which encompass all of their activities. Under
California law, a “publication or broadcast” made as part of a “judicial proceeding” is privileged.
Cal. Civ. Code § 47(b) (West). “The usual formulation is that the privilege applies to any
communication (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 [has] some
connection or logical relation to the action. The privilege is not limited to statements made during
a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” Action
Apartment Assn., Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1241 (2007) (internal citations
omitted). Similarly, under the federal Noerr–Pennington doctrine, “in the litigation context, not
only petitions sent directly to the court in the course of litigation, but also ‘conduct incidental to
the prosecution of the suit’ is protected.” Sosa v. DIRECTV, Inc., 437 F.3d 923, 934 (9th Cir.
2006) (quoting Columbia Pictures Indus., Inc. v. Prof'l Real Estate Investors, Inc., 944 F.2d 1525,
1528–29 (9th Cir.1991)); see also Litrinium, Inc. v. MACOM Tech. Sols. Inc., No. 19-1674-JVS,
2020 WL 4580506, at *6 (C.D. Cal. Apr. 27, 2020) (“Immunity under the Noerr-Pennington
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doctrine includes communications made to the court during the course of a lawsuit.”). Plaintiff
challenges the Allan Defendants’ statements and conduct related to Allan’s representation of
Plaintiff’s children in the underlying state court cases. Because the Allan Defendants’ alleged
conduct was made during and for the purpose of judicial proceedings, Plaintiff’s claims against the
Allan Defendants are barred by the litigation privileges under state and federal law. Plaintiff has
not met his burden to show that he had a reasonable probability of prevailing on the merits of his
claims against the Allan Defendants, prior to dismissing them from the SAC.
III. 	CONCLUSION
The Court GRANTS the Allan Defendants’ special motion to strike and FINDS that the
Allan Defendants are prevailing parties for the purposes of § 425.16.
If the Allan Defendants intend to seek reasonable attorneys’ fees, they must do so by
motion by December 15, 2025. Plaintiff may file an opposition within 14 days of the date the
motion is filed per the Civil Local Rules.
IT IS SO ORDERED.
Dated: November 28, 2025
Noël Wise
United States District Judge
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