KOFI OPONG-MENSAH v. BENJAMIN CARROLL GRAVES

This matter was called as regularly scheduled in this department on April 17, 2026. The matter was continued at Plaintiff Kofi Opong-Mensah’s request, to allow him time to provide supplemental briefing. The court granted the request over Defendant’s objection. Supplemental documents and declarations were filed by the Plaintiff on April 24, 2026, and April 30. A sur reply was filed by the Defendant on May 1. Defendant now seeks an additional 13.4 hours of compensable time for the delay.

A. Judicial Notice.

Defendant’s request for Judicial Notice filed on March 27, 2026, is GRANTED. The Court may take judicial notice of (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (Cal. Evid. Code §452). Defendant’s request for the court to take Judicial Notice of prior orders entered in the case and also in Kofi Opong Mensah vs. Marin Community College District et al (CIV1903799) is GRANTED.

B. Motion for Attorney’s Fees and Costs

This case (CIV0006974) arises from a settlement conference that occurred in Kofi Opong Mensah vs. Marin Community College District, et al. (CIV1903799). In that case, plaintiff Kofi Opong Mensah (“Plaintiff”) initiated an action against the Marin Community College District (“the District”) asserting claims for emotional distress, race based discrimination, and FEHA violations for their alleged failure to hire Plaintiff as a full-time tenured professor of Chemistry

After reaching a settlement in that case, Plaintiff Kofi Opong-Mensah (“Plaintiff”) filed this lawsuit against Defendant Benjamin Graves (“Defendant”) asserting that Mr. Graves, while acting as a volunteer court-appointed settlement conference panelist, “induced” Plaintiff Opong to sign the Settlement Agreement. Plaintiff alleges that Defendant advised him he could rescind the Settlement Agreement at a later date. Defendant denies this allegation.

On November 10, 2025, Defendant filed a Motion to Strike, Anti-Slapp. The matter was heard in this department on January 30, 2026, with the court entering an order granting the motion to strike on February 5, 2026.

Defendant filed a notice of appeal related to that order on February 9, 2026. Although the order at issue is on appeal, the Court may hear this motion for attorney's fees because of the granting of the anti-SLAPP. A determination on attorney's fees is not on the merits of the anti-SLAPP. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 194 [“[S]ection 916 stays all further proceedings on the merits during the pendency of an appeal from the denial of an anti- SLAPP motion.”].) The trial court retains jurisdiction to entertain the motion for attorney's fees. (Doe v Luster (2006) 145 Cal.App.4th 139, 144.) The fee motion presents a separate issue from the underlying motion itself. (Carpenter v. Jack in the Box Corp (2007) 151 Cal.App.4th 454, 461.)

Plaintiff filed an opposition to the fee motion on April 14, 2026. While the opposition is untimely and provides the Defendant with little opportunity to reply, the court will accept it as it is helpful to the court to understand Plaintiff’s position. [The court has discretion whether to consider late filed papers. Cal. Rules of Court 3.1300(d).] The court notes the opposition is voluminous at 86 pages long. An opening brief for a motion cannot exceed 15 pages in length. The memorandum in Opposition is subject to the same page limits. Cal. Rules of Court, 3.1113(d).]

Defendant now seeks prevailing party fees. Civ. Proc. Code § 425.16, subdivision (c), provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys’ fees and costs” (emphasis added). The California Supreme Court has made clear that this fee-shifting provision is mandatory. In Ketchum v. Moses 24 Cal.4th 1122, 1131 (2001), the court emphasized that “[a]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” The fee provision of the anti-SLAPP statute is not a discretionary sanction, but rather a mandatory fee-shifting provision designed to protect First Amendment rights. (Id.)

Defendant argues the Plaintiff is now required to reimburse Defendant for his attorney’s fees and costs incurred in connection with Defendant’s successful Special Motion to Strike. Defendant argues fees are warranted because Plaintiff generated unnecessary compensable fee work. He provides several factors to support the argument that Plaintiff’s case was frivolous, including:

1. Bad Faith: Defendant alleges that the case filed against the MSC Panelist Graves were in bad faith. Plaintiff was represented by counsel at the time he entered into a settlement agreement. He stated on the record that he read and understood the settlement agreement.

2. Voluminous filings in violation of the Rules of Court. At one point, Plaintiff filed a verbose 432-page Opposition that alleged criminal fraud, criminal conspiracy, ethical violations by Defendant.

3. Criminal threats. Plaintiff alleged a neutral Mandatory Settlement Conference panelist who generously volunteered his time to assist to settle Mr. Opong’s case of criminal fraud.

4. Inconsistent Sworn Statements. Opong’s testimony at the post-settlement voir dire in case no CIV1903799, in which he testified “Yes” that he “understood and agreed to the terms, and ... had an opportunity to discuss the agreement with counsel” is inconsistent with the allegations made in his complaint.

Plaintiff’s opposition asks the court to reverse the court’s order granting the special motion to strike. That order is currently on appeal. The opposition does not address the fee motion at bar.

Civ. Proc. Code § 425.16, subdivision (c), provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys’ fees and costs” (emphasis added). “Any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” Ketchum, 24 Cal.4th 1131, The fee provision of the anti-SLAPP statute is not a discretionary sanction, but rather a mandatory fee-shifting provision designed to protect First Amendment rights. (Id.)

Defendant seeks $72,121 in fees and $3,988.94 in costs, plus an additional $5,500 in fees for arguing this fee motion.

The court will scrutinize the reasonableness of the fee petition under the “lodestar” method by determining the lodestar, which consists of the number of hours reasonably spent by the reasonable hourly rates for that work on a non-contingency basis. The lodestar method requires the trial court to determine a lodestar figure based on careful examination of reasonable hourly compensation of each attorney and consideration of the time spent to perform each task. (Vo v. Las Virgenes Water District, (2000) 79 Cal.App.4th 440, 445-446.)

1. Reasonable Rate

Defendant’s counsel Duncan Nefcy is an attorney with the Law Offices of Andrew Wolff, PC, located in Berkeley, California. He states in his declaration that he has been admitted to practice in California “for over eight (8) years.” His practice is limited to civil litigation including realestate, landlord-tenant disputes, and consumer protection. His declaration provides that he has experience in Anti-SLAPP motions and appellate work in that area.

He seeks compensable fees of $550.00 per hour. He also asked the court to approve a requested rate of $190.00 per hour for paralegal time.

The lodestar method requires the trial court to determine a lodestar figure based on careful examination of reasonable hourly compensation of each attorney and consideration of the time spent to perform each task. (Vo, 79 Cal.App.4th 445-446.). “The experienced trial judge is the best judge of the value of professional services rendered in his court.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095, citing Serrano v. Priest (Serrano III) (1977) 20. Cal.3d 25, 49.)

Plaintiff, in his opposition, does not object to counsels hourly rate of $550.00 hour.

The court has reviewed the declaration submitted by counsel, which attaches both the fee scale recommended by the United States Attorney’s Office (Nefcy Decl., Exh D) and the Laffey fee matrix for 2026, attached as exhibit E. Based on the data provided in support of the fee request, and in consideration of the experience of counsel as stated in his declaration, the court finds the hourly rate requested of $550.00 per hour to be reasonable, and well in line with the reasonable compensable rates charged by Marin County attorneys with similar experience.

The requested rate for the paralegal is also approved.

2. Hours Worked

A party who seeks attorney’s fees has the initial burden of “documenting the appropriate hours expended.” (ComputerXpress Inc. v. Jackson, (2001) Cal.App.4th 993, 1020.) Once a documented hour total has been submitted, the opposing party may make objections to the hours claimed. General objections that work is “excessive” or “unreasonable” are insufficient. The

objections should be specific. (Premier Med. Mgmt. v California Ins. Guarantee Ass’n, (2008) 163 Cal.App. 4th 550, 563.)

The basis for calculating the lodestar “must be the actual hours counsel devoted to the case, less those resulting from ineffective or duplicative use of time.” (Horsford v. Board of Trustees of Cal. State, (2005) 132 Cal.App. 4th 359, 395.) The court also recognizes these billing records of counsel constitute “verified time statements of the attorneys, as officers of the court, and are entitled to credence in the absence of a clear indication that the records are erroneous.” Id. at 394.

Plaintiff, in his opposition, does not specifically object to the itemized billing entries submitted by Defendant’s counsel at ¶15 of the Nefcy Dec.

California courts have consistently held that verified time statements from attorneys carry a presumption of accuracy when submitted in support of fee requests. In Horsford, the court articulated the standard that attorney billing records are presumed credible unless there is "a clear indication the records are erroneous." This principle has been repeatedly affirmed. In the City of Colton v. Singletary, the court applied this exact standard, holding that "the verified time statements of (an) attorney (), as (an) officer() of the court, are entitled to credence in the absence of a clear indication the records are erroneous". (City of Colton v. Singletary, (2012) 206 Cal.App.4th 751.) The court further noted that when a party fails to point out specific errors in counsel's declaration, it is proper for the trial court to rely on that declaration.

Here, counsel did not provide detailed contemporaneously created billing statements. Rather, the billing was summarized and attached to the declaration as ¶ 15. The billing by both timekeepers appears as block billing. The billing summary indicates the counsel dedicated 126.5 hours on this matter. Of this time, counsel includes 11.5 hours worked on the fee motion. This amount will be addressed in the fees on fees section below. The fees claimed on the merits is 115 (126.5-11.5 hours) The paralegal billed 13.4 hours.

There are legitimate grounds to reduce or eliminate claimed hours when the court cannot properly analyze billing records to determine whether there is excessive or unnecessary billing. (Hensley v Eckerhart (1983) 461 U.S. at 434.) Block billing is a practice where an attorney groups together under a single time charge a group of multiple task descriptions without separating out the actual time spent on each task. (Bell v. Vista Unified School District, (2000) 82 Al.Ap.4th 672, 689, (...we agree with VUSD that the blocked-billing entries render it virtually impossible to break down hours on a task-by-task basis...))

Courts have generally held that fee awards should be reduced for block billing as it tends to inflate the claimed hours spent and interferes with the ability to determine what time was spent on a particular task. (Id). A district court imposed an across-the-board reduction of 20% due to block billing. The District Court arrived at its 20% reduction based on a report by the California State Bar's Committee on Mandatory Fee Arbitration, which concluded that blocking "may increase time by 10% to 30%." (See, The State Bar of California Committee on Mandatory Fee Arbitration, Arbitration Advisory 03-01 (2003) ("Fee Report"); Welch v. Metro. Life Ins. Co., 480 F.3d 942 (9th Cir. 2007)). The court finds this analysis helpful.

In addition, there are no voluntary adjustments of time, down, by Defendant’s counsel, for tasks such as routine emails, resulting in “no charges” for those time entries.

The court reduces the billable hours by 20% to account for billing in blocks, and the lack of contemporaneously created billing statements to support the fee request.

Attorney time is reduced from 115 to 92 hours. Paralegal time is reduced from 13.4 to 10.72 hours.

Although the Nefcy Dec;. is submitted under penalty of perjury by an officer of the court, attesting to the time worked, these are billing summaries and not verified billing statements.

Counsel is awarded $50,600.00 ($550 per hour x 92 hours) in reasonable compensable attorney’s fees, and $2,036.80 for time worked by the paralegal ($190 x 10.72 hours)

3. Hours spent on the fee motion

In an email sent by Defendant’s counsel to the Plaintiff on February 9, 2026, Defendant’s counsel attempted to settle fee issue before they began work on the fee motion. (Nefcy Dec., exhibit C.) Unfortunately Plaintiff ignored the offer and now owes compensable attorney’s fees for fee time spent drafting the fee motion..

Plaintiff’s counsel is awarded 21.5 hours for the time committed to filing this motion. The billing summaries are concise. The fees on fee award is $11,825.00.

4. Costs

Paragraph 18 of the Nefcy Decl. request cost recovery of $3,928.94. Plaintiff’s objection dos not specifically object to the cost recovery request.

Defendant’s request for recovery of reasonable costs in the amount of $3,928.94 is GRANTED.

5. Fees and costs awarded

Fees and costs are awarded as follows:

Fees awarded

Atty Nefcy $50,600.00

Paralegal $2,036.80

Fees on Fees

Atty Nefcy $11,825.00

Total Fees $64,461.80

Costs $3,928.94

Grand Total $68,389.94

Parties must comply with Marin County Superior Court Local Rules, Rule 2.10(A), (B), which provides that if a party wants to present oral argument, the party must contact the Court at (415) 444-7046 and all opposing parties by 4:00 p.m. the court day preceding the scheduled hearing. Notice may be by telephone or in person to all other parties that argument is being requested (i.e., it is not necessary to speak with counsel or parties directly.) Unless the Court and all parties have been notified of a request to present oral argument, no oral argument will be permitted except by order of the Court. In the event no party requests oral argument in accordance with Rule 2.10(B), the tentative ruling shall become the order of the court.

IT IS ORDERED that evidentiary hearings shall be in-person in Department L. For routine appearances, the parties may access Department L for video conference via a link on the court website. Kindly turn your camera on when your case is called and make sure the party or lawyer making the appearance is properly identified on the screen.

FURTHER ORDERED that the parties are responsible for ensuring that they have a good connection and that they are available for the hearing while using the virtual remote courtroom. If the connection is inadequate, the Court may proceed with the hearing in the party’s absence. If it is determined that you are diving your car during the hearing, you will be removed from the virtual courtroom. (Yes, this happens).