Benson

This is the second appeal in this action. Plaintiff appeals from the trial court’s order, made after the first appeal, which awards defendant his attorney’s fees for the first appeal.

Plaintiff and appellant Ralph R. Benson originally sued defendant and respondent Simon Greitzer and others in state court under the Federal Civil Rights Act, 42 United States Code section 1983 . On the prior appeal following the sustaining of a demurrer, the appellate court affirmed the trial court’s order of dismissal, holding that no cause of action was stated against defendant. (Benson v. Rubin (Sept. 22, 1988) B022113 [nonpub. opn.].) On that appeal, defendant requested the appellate court to award sanctions for a frivolous appeal, citing In re Marriage of Flaherty (1982) 31 Cal.3d 637 [ 183 Cal.Rptr. 508 , 646 P.2d 179 ]. The appellate court specifically addressed this request in the prior opinion, stating, “Although we reject appellant’s contentions involving Greitzer, we do not find the appeal to be frivolous within the standards of In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 .”

After the filing of the remittitur, defendant’s memorandum of costs on appeal requested the…