Hobson

*491 MEMORANDUM *

Orthodontic Centers of America, Inc. and Orthodontic Centers of California, Inc. (together “OCA”) appeal three of the district court’s rulings. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm the district court on all three issues.

First, OCA contends that the district court improperly removed the promissory notes from the case. However, OCA abandoned this claim when it consented to removing the promissory notes at trial. 1 Thus, we will not consider it on appeal.

Second, the district court applied the correct legal standard to determine which party was the prevailing party. 2 The parties’ Business Services Agreement (“the Agreement”) provided that the prevailing party on any legal action under the Agreement was entitled to recover attorneys’ fees and costs. Both parties’ respective claims arose out of the other party’s alleged breaches of the Agreement. Thus, the district court correctly determined that California Civil Code § 1717 3 governed the “prevailing party” determination. 4 It also correctly determined that Hobson was the prevailing party.

Third, the district court properly awarded all costs to Hobson. The plain language of the…