                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 02 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


VENTURE CORPORATION, LTD and                     No.   15-17439
VENTURE DESIGN SERVICES, INC.,
                                                 D.C. No. 5:13-cv-03384-PSG
              Plaintiffs-Appellees,

 v.                                              MEMORANDUM*

JAMES P. BARRETT,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Paul S. Grewal, Magistrate Judge, Presiding

                        Argued and Submitted July 10, 2017
                            San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and LYNN,** Chief District Judge.

      James Barrett appeals multiple orders issued by the district court in favor of

Appellees Venture Corporation, Limited (“VCL”) and Venture Design Services,



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
Inc. (“VDSI”). We have jurisdiction to hear this appeal, 28 U.S.C. § 1291, and we

affirm.

      1. We will not review a district court’s denial of a motion for summary

judgment “on an appeal from a final judgment entered after a full trial on the

merits,” Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1359 (9th Cir. 1987),

unless “the district court made an error of law that, if not made, would have

required the district court to grant the motion,” Escriba v. Foster Poultry Farms,

Inc., 743 F.3d 1236, 1243 (9th Cir. 2014) (quoting Banuelos v. Constr. Laborers’

Trust Funds for S. Cal., 382 F.3d 897, 902 (9th Cir. 2004)). The district court

made no error of law when it considered Barrett’s 2003 employment agreement in

ruling on Barrett’s motion for summary judgment. Under the employment

agreement, Barrett “assign[ed] to [VDSI] without royalty or any other further

consideration [his] entire right, title and interest in and to any Invention” he “may

conceive, make, develop or work on . . . during the term of [his] employment with

[VDSI].” The employment agreement was relevant to the effect of the subsequent

assignment contracts between Barrett and VCL, in which Barrett purported to

assign his rights in three different inventions to VCL. Consideration of the

employment agreement, therefore, did not violate California’s parol evidence rule.

See Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass’n, 291 P.3d


                                           2
316, 319 (Cal. 2013); Cal. Civ. Proc. Code § 1856(f) (“Where the validity of the

agreement is the fact in dispute, this section does not exclude evidence relevant to

that issue.”).

       2. The district court did not abuse its discretion in denying Barrett’s request

for a curative jury instruction that he was the sole and undisputed inventor of the

three inventions at issue in this case. First, the district court gave “adequate

instructions on each element of the case.” See Van Cleef v. Aeroflex Corp., 657

F.2d 1094, 1098–99 (9th Cir. 1981) (“A failure to give a requested jury instruction

is not reversible error so long as the trial judge gives adequate instructions on each

element of the case.”). Second, the testimony from VDSI employees that they had

been involved in the development of the three inventions was highly relevant to

whether Barrett developed the inventions while working at VDSI, on VDSI time,

or using VDSI resources. The testimony was not unfairly prejudicial, and thus did

not require a curative instruction, because it did not “suggest decision on an

improper basis.” Fed. R. Evid. 403 advisory committee’s notes to 1972

amendment; see also White v. Ford Motor Co., 500 F.3d 963, 977 (9th Cir. 2007).

       3. The district court did not abuse its discretion in denying Barrett’s request

for a jury instruction on waiver. “A waiver is an intentional relinquishment or

abandonment of a known right or privilege.” Groves v. Prickett, 420 F.2d 1119,


                                           3
1125 (9th Cir. 1970). Barrett failed to present any evidence to support his theory

that VDSI intentionally relinquished the rights it obtained in the inventions through

Barrett’s employment agreement.1 See Jones v. Williams, 297 F.3d 930, 934 (9th

Cir. 2002) (“A party is entitled to an instruction about his or her theory of the case

if it is supported by law and has foundation in the evidence.”).

      4. The district court did not err in granting Appellees’ motion for judgment

as a matter of law, because, even construed “in the light most favorable to” Barrett,

“the evidence permits only one reasonable conclusion.” Wallace v. City of San

Diego, 479 F.3d 616, 624 (9th Cir. 2007). There is no evidence in the record that

VDSI forfeited the rights it obtained in the inventions through Barrett’s

employment agreement. Rather, the record establishes that the rights VDSI

obtained in the inventions automatically transferred to VCL under a separate

agreement between VDSI and VCL. Therefore, VDSI had no rights to forfeit.

      5. Barrett is not entitled to his fees and costs, because VDSI and VCL are the

prevailing parties in this action. See Cal. Civ. Code § 1717(b)(1). Barrett was not




      1
        We acknowledge that the district court gave an instruction on forfeiture and
an instruction should be given only when there is evidence to support it being
given. See Gantt v. City of Los Angeles, 717 F.3d 702, 706–07 (9th Cir. 2013).
But that error was harmless in view of the correct judgment as a matter of law that
followed the jury verdict.
                                           4
successful on any of his counterclaims, and VDSI and VCL received all the relief

they requested.

      AFFIRMED.




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