                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 19 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MARISA BAUTISTA, on behalf of                    No. 09-55772
herself, all those similarly situated and the
general public,                                  D.C. No. 2:08-cv-03717-PSG-RZ

             Plaintiff - Appellee,
                                                 MEMORANDUM*
  v.

PARK WEST GALLERY, a Michigan
Corporation, DBA Park West, DBA Park
West at Sea,

             Defendant - Appellant.



MARISA BAUTISTA, on behalf of herself,           No. 09-55773
all those similarly situated and the general
public,                                          D.C. No. 2:08-cv-06262-PSG-RZ

             Plaintiff - Appellee,

  v.

PARK WEST GALLERY, INC., a
Michigan Corporation, DBA Park West,
DBA Park West at Sea,

             Defendant - Appellant.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                        Argued and Submitted June 11, 2010
                               Pasadena, California

Before:        TROTT and W. FLETCHER, Circuit Judges, and MAHAN, **
               District Judge.


      Park West Gallery appeals from the district court’s denial of attorney’s fees

and costs. Park West moved for attorney’s fees and costs after Marisa Bautista’s

first action asserting contract claims against Park West was dismissed for lack of

personal jurisdiction and her subsequent action was dismissed on the basis of

collateral estoppel on the issue of personal jurisdiction. The district court held that

Park West was not a prevailing party under California Civil Code § 1717 because

the dismissal did not finally resolve Bautista’s contract claims. We affirm.

      A district court’s decision to deny attorney’s fees and costs is reviewed for

an abuse of discretion. Berkla v. Corel Corp., 302 F.3d 909, 917 (9th Cir. 2002).

Underlying findings of fact are reviewed for clear error, while questions of law are

reviewed de novo. Id.




          **
             The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
                                           2
      The district court did not abuse its discretion by determining that Park West

was not a prevailing party on the contract claim. See Cal. Civil Code § 1717; Hsu

v. Abbara, 9 Cal. 4th 863, 876 (1995). Park West did not obtain a “simple,

unqualified win.” Hsu, 9 Cal. 4th at 877. Rather, Park West “obtained only an

interim victory, based on [Bautista’s] having attempted to pursue [her] claims in

the wrong forum.” In re Estate of Drummond, 149 Cal. App. 4th 46, 51 (2007). As

Park West’s counsel conceded at oral argument, Bautista still could assert her

contract claims in another forum such as Michigan, where Park West is

incorporated. The district court therefore had “a sound basis for a discretionary

finding that neither party prevailed on the contract.” Id. at 54. In light of that

finding, the district court properly denied attorney’s fees.

      The district court denied Park West costs because it held that Park West did

not submit any costs that were recoverable by statute. Park West does not dispute

that it did not submit costs recoverable by statute. Instead, it argues that it is

entitled to costs pursuant to the contract as a prevailing party. Because the district

court did not err in concluding that Park West was not a prevailing party, it did not

err in denying costs.

AFFIRMED.




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