735 N.E.2d 273 (2000)
In the Matter of C.S., Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 49A05-9912-JV-567.
Court of Appeals of Indiana.
September 8, 2000.
*274 Elizabeth Gamboa, Indianapolis, Indiana, Attorney for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Eileen Euzen, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION
BAKER, Judge
C.S., a juvenile, appeals an adjudication finding him to be a delinquent child for possessing a firearm on school property, an act which would be a Class C felony if committed by an adult,[1] and the revocation of his probation. Specifically, he maintains that the adjudication must be reversed because the trial court erred in admitting a handgun into evidence that was found on C.S. during a pat down search by a school official. C.S. also maintains that the evidence was insufficient to support the revocation of C.S.'s probation.

FACTS
On July 23, 1999, C.S. was adjudicated a delinquent child and placed on probation until October 21, 1999. As a condition of his probation, C.S. was barred from possessing *275 a gun. On August 9, 1999, C.S. was attending summer school when Indianapolis Public Schools ("IPS") police officer Sergeant Gaines received information about C.S. from another student. Upon receiving such information, Sergeant Gaines removed C.S. from class and "[g]ave him a pat down search for officer safety." R. at 88. During the search, Sergeant Gaines discovered a handgun in C.S.'s pants pocket.
As a result of this incident, the State filed a notice of delinquency against C.S. for the offenses of carrying a handgun without a license as a class C felony and possession of a firearm on school property, a class D felony.[2] The State also filed a notice of probation violation, alleging that C.S. had violated the terms of his probation by committing the offenses of "possession of a handgun on school property, disorderly conduct, intimidation and carrying a handgun without a license." R. at 18. At a hearing on both notices, the juvenile court found C.S. to be a delinquent child as charged, although it merged the two offenses for the purposes of disposition. The juvenile court also determined that C.S. had violated his probation and sentenced C.S. to six months incarceration. C.S. now appeals.

DISCUSSION AND DECISION

I. Admission of Handgun
C.S. first contends that the trial court erred in admitting the handgun into evidence that was found in his possession during a pat down search by Sergeant Gaines. Specifically, C.S. contends that the admission of the handgun violated his rights against unreasonable search and seizure under the Fourth Amendment to the United States Constitution and article I, section 11 of the Indiana Constitution.[3]
To resolve this issue, we initially observe that a trial court possesses broad discretion in ruling on the admissibility of evidence, and we will not disturb its decision absent a showing of an abuse of that discretion. D.I.R. v. State, 683 N.E.2d 251, 252 (Ind.Ct.App.1997). A judicially issued search warrant is a condition precedent to a lawful search, but an exception to the warrant requirement permits school officials to search students in a school setting under a less stringent standard. D.B. v. State, 728 N.E.2d 179, 181 (Ind.Ct.App. 2000). The United States Supreme Court recently commented that the reasonable expectation of Fourth Amendment privacy is diminished in quarters such as airports and schools. Florida v. J.L., 529 U.S. 266, ___, 120 S.Ct. 1375, 1380, 146 L.Ed.2d 254 (2000). The legality of a student search by a school official depends upon the reasonableness of the search under all of the circumstances. See New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). Moreover, a school official's search of a student is not subject to the Fourth Amendment's warrant and probable cause requirements. Id.
This court has adopted a two-part test established by the United States Supreme Court to determine whether the search is reasonable. See Berry v. State, 561 N.E.2d 832 (Ind.Ct.App.1990). Specifically, the search must first be justified at its inception. D.I.R., 683 N.E.2d at 253. Under ordinary circumstances, a student search will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student is violating or *276 has violated either the law or a school rule. Id. Second, the search must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. Id.
In the instant case, the evidence presented at the hearing demonstrated that Sergeant Gaines received information from a student about C.S. that caused her to remove C.S. from the classroom .[4] Sergeant Gaines testified that she was concerned for her safety and proceeded to conduct a pat down search for that reason. R. at 88. Inasmuch as Sergeant Gaines testified that she was concerned for her safety, the search of C.S. was justified from its inception. See S.A. v. State, 654 N.E.2d 791, 796 (Ind.Ct.App.1995), trans. denied (search of juvenile's bag was justified from inception where a student provided information that the defendant may have stolen property); see also Berry, 561 N.E.2d at 837 (search of juvenile's jacket was justified from inception where teacher reported that juvenile committed a school infraction). While Sergeant Gaines' actions may not have satisfied the warrant and probable cause requirements in some other environment, the protective search of C.S. just outside the classroom was permissible. See Florida v. J.L., 529 U.S. at ___, 120 S.Ct. at 1380.
We also note that the search was reasonably related to the objectives of the search inasmuch as Sergeant Gaines conducted only a minimally intrusive pat down of C.S.'s clothing to determine whether he possessed any contraband. Once the gun was discovered, Sergeant Gaines ceased the search. As a result, we conclude that under all of the circumstances presented here, the search of C.S. was reasonable and the handgun was properly admitted.

II. Determination of Delinquency and Probation Revocation
C.S. next claims that the evidence was insufficient to support the finding that he was a delinquent child. Similarly, he contends that the evidence was not sufficient to support the probation revocation.
When this court reviews sufficiency of the evidence claims with respect to juvenile adjudications, we neither reweigh the evidence nor judge the credibility of witnesses. Fields v. State, 679 N.E.2d 898, 900 (Ind.1997); Moran v. State, 622 N.E.2d 157, 159 (Ind.1993). The State is required to prove, beyond a reasonable doubt, that the juvenile committed the charged act. Moran, 622 N.E.2d at 159. We consider only the evidence most favorable to the judgment and the reasonable inferences therefrom and will affirm if the evidence and those inferences constitute substantial evidence of probative value to support the judgment. Blanche v. State, 690 N.E.2d 709, 712 (Ind.1998).
We next observe that a probation revocation hearing is in the nature of a civil proceeding and the decision to revoke is a matter within the sound discretion of the trial court. Plue v. State, 721 N.E.2d 308, 310 (Ind.Ct.App.1999). The State need prove the alleged violation only by a preponderance of the evidence. Id. As with challenges to the sufficiency of the evidence in delinquency proceedings, we will affirm a decision to revoke probation if there is substantial evidence of probative value to support the trial court's conclusion that a probationer has violated any condition of probation. Cox v. State, 706 N.E.2d 547, 551 (Ind.1999).
In addressing the issues that C.S. presents today, we note that to convict C.S. of carrying a handgun without a license as a class C felony, the State was required to prove that he carried a handgun within 1000 feet of school property.
*277 I.C. § 35-47-2-1. The offense of possessing a firearm on school property is governed by I.C. § 35-47-9-2, which provides in relevant part that "[a] person I who possesses a firearm ... in or on school property ... commits a Class D felony." Once the State demonstrates that the defendant carried a handgun on or about his person, away from his dwelling or business, the burden shifts to the defendant to establish that he possessed a valid license. Harris v. State, 716 N.E.2d 406, 411 (Ind. 1999). Proof that a defendant had a license is an exception to the offense, and the burden is on the defendant to prove he possessed a valid license. Id.
In the instant case, Sergeant Gaines testified that fourteen-year-old C.S. had a .25 caliber automatic handgun in his left front pants pocket. R. at 87-89. Because an individual must be eighteen years of age or older to qualify for a license to carry a handgun, C.S. cannot meet the burden of demonstrating that he had a license to carry the pistol. As a result, the evidence was sufficient to support the conclusion that C.S. was a delinquent child with respect to the handgun charges. Additionally, we note that the same evidence supported the revocation of C.S.'s probation. The evidence established that C.S. violated the terms of his probation because he did not obey all laws and possessed a firearm. Thus, the evidence was also sufficient to support the revocation of C.S.'s probation.
Judgment affirmed.
ROBB, J., concurs.
SHARPNACK, C.J., concurs and dissents, with opinion.
SHARPNACK, C.J., concurring in part and dissenting in part.
I respectfully disagree with the majority's conclusion that Sergeant Gaines' search of C.S. was constitutionally valid, and as a result I also conclude that there was insufficient evidence to support the trial court's finding that C.S. is a delinquent child. I agree with the majority that the evidence was sufficient to support the trial court's revocation of C.S.'s probation, but I reach that conclusion by different reasoning.
The standard by which we analyze school searches is whether the search is reasonable under all the circumstances. New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 742-743, 83 L.Ed.2d 720 (1985). A school search is reasonable when it is justified at its inception and when the search must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. D.I.R. v. State, 683 N.E.2d 251, 253 (Ind.Ct.App.1997). I do not agree that the search here was justified at its inception.
A search is justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student is or has violated either the law or a school rule. Id . In this case, all that the record reveals is that Sergeant Gaines received information from a student about C.S. that caused her to remove C.S. from the classroom and search him.[5] I conclude that this evidence is insufficient to demonstrate that Sergeant Gaines had a reasonable basis to suspect that C.S. was violating the law or school rules. See id. (determining that a school official's search of a student was unconstitutional because the school official had no reasonable grounds to suspect that the defendant was violating the law or school rules). Students have a diminished expectation of privacy in school, but school *278 officials must provide some justification for searching a student. The evidence in the record does not reveal any justification at all.
Furthermore, the search cannot be justified under the "officer safety" exception to the warrant requirement of the Fourth Amendment. Under this exception, an officer may pat down a suspect for weapons if he or she can point to specific reasonable inferences that would cause a reasonably prudent person to be warranted in the belief that his or her safety or that of others was in danger. See L.A.F. v. State, 698 N.E.2d 355, 356 (Ind.Ct.App.1998). In the instant case, Sergeant Gaines merely stated that she searched C.S. for "officer safety" without articulating any specific facts that would have warranted a belief that she was in danger. Such general assertions are insufficient to establish that a reasonably prudent person would be warranted in the belief that his or her safety was in danger. See id.
Consequently, I conclude that the trial court abused its discretion when it admitted the handgun into evidence for the purpose of adjudicating the delinquency charges against C.S., and I would reverse the trial court's finding that C.S. is a delinquent child. See, e.g., Jackson v. State, 669 N.E.2d 744, 750 (Ind.Ct.App.1996) (reversing a defendant's convictions for drug possession where the drugs were illegally seized and were the only evidence of guilt).
Turning to the probation revocation petition, I agree that a probation revocation hearing is in the nature of a civil proceeding, and because such a proceeding is not an adjudication of guilt, a defendant is not endowed with all of the rights he or she possessed before his conviction. Plue v. State, 721 N.E.2d 308, 310 (Ind.Ct.App. 1999). In addition, the exclusionary rule is not fully applicable to probation revocation proceedings, and illegally seized evidence "`will be excluded only if it was seized as part of a continuing plan of police harassment or in a particularly offensive manner.'" Id. (quoting Dulin v. State, 169 Ind.App. 211, 219, 346 N.E.2d 746, 751 (1976)).
Here, C.S. does not claim that Sergeant Gaines harassed him as part of a continuing plan. Furthermore, although an intrusion into an individual's privacy by means of a search should not be taken lightly, I cannot conclude that Sergeant Gaines' search of C.S. was conducted in a particularly offensive manner. See id. (determining that a search was not conducted in an offensive manner where the officer patted down, restrained, and handcuffed a probationer before discovering the challenged evidence). Consequently, even though Sergeant Gaines' search of C.S. was unconstitutional, the handgun was properly admitted for the purpose of adjudicating the probation revocation petition. See id. Because the handgun was properly admitted for the purpose of the probation revocation petition, I agree with the majority that the evidence is sufficient to support the trial court's revocation of C.S.'s probation.
I affirm the trial court's revocation of C.S.'s probation, but I would reverse the trial court's finding that C.S. is a delinquent child.
NOTES
[1]  IND. CODE § 35-47-2-1; I.C. § 35-47-2-23.
[2]  I.C. § 35-47-9-2.
[3]  The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV. Article I, section 11 of the Indiana Constitution is virtually identical to the Fourth Amendment.
[4]  The specific nature of the information that the student related to Sergeant Gaines was not admitted into evidence.
[5]  As the majority indicates, the specific information that the student told to Sergeant Gaines was not admitted in evidence. A hearsay objection to it was sustained and no offer to prove was made. Because the information was most likely relevant to the issue of whether Sergeant Gaines had probable cause to call out C.S. and frisk him, it was most likely not hearsay and should have been admitted.


270 So.2d 434 (1972)
Charles Arnold SEESHOLTS, Appellant,
v.
Elizabeth P. BEERS, and the Equitable Life Assurance Society of the United States, Appellees.
No. 71-927.
District Court of Appeal of Florida, Fourth District.
December 12, 1972.
Rehearing Denied January 10, 1973.
*435 Edward W. Starr, Sr., of Law Offices of Starr & Myers, West Palm Beach, for appellant.
Thomas J. Yeager of Nason Gildan & Yeager, West Palm Beach, for appellees.
CROSS, Judge.
Appellant-defendant, Charles Arnold Seesholts, appeals an order of the trial court awarding a reasonable rent to the appellee-plaintiff, Elizabeth P. Beers, as a set-off to appellant's claims for mortgage payments, et cetera, in an action for partition. We reverse.
The parties to this appeal were husband and wife, but due to marital difficulties a divorce was obtained in March of 1969. The terms of the divorce decree granted the wife exclusive possession of the former marital home (held by the parties in a tenancy by the entireties, and converted by the divorce into a tenancy in common) until September of 1969. No further provisions were made concerning the property. Appellee-plaintiff, Elizabeth P. Beers (Elizabeth) voluntarily vacated the premises in September 1969, and the appellant-defendant, Charles Arnold Seesholts (Charles) began his sole possession of the home in October 1969. It is admitted by the parties that Charles was not holding adversely to Elizabeth's title and that Charles did not hold the property as a result of ouster or the equivalent thereof.
Elizabeth brought this action for partition and sought one-half of the reasonable rental value of the home while occupied by Charles as a charge to be allowed to her in the event that the home had to be sold. Charles answered, agreed that the home was indivisible, and requested that the home be sold. He, therefore, sought as a charge to be allowed to him one-half of the following: taxes, both state and municipal, house insurance, mortgage payments, money to pay for damage to the house allegedly caused by Elizabeth, money for the various items of personal property alleged to have been owned jointly but taken from the house by Elizabeth, and the full value of various items of personal property alleged to have been owned solely by him but taken by Elizabeth. The trial court entered final judgment for partition and in addition, determined:
"3. The Court having found that the parties' claims are offsetting, the Plaintiff's claim for rents is denied and the Defendant's claim for credits due for mortgage payments, taxes, insurance and improvements is denied."
This appeal followed.
Appellant presents one question for our determination: whether the trial court erred in permitting the wife a set-off of one-half of the reasonable rental value of the home.
The rule in Florida has long been that:
"... when one cotenant has exclusive possession of lands owned as tenant in common with another and uses those lands for his own benefit and does not *436 receive rents or profits therefrom, such cotenant is not liable or accountable to his cotenant out of possession unless such cotenant in exclusive possession holds adversely or as the result of ouster or the equivalent thereof. This was the rule of common law, as modified by the Statute of Ann, and as it was expressly adopted as the law of Florida in 1875 by our Supreme Court in Bird v. Bird (Fla. 1875), 15 Fla. 424. The rule has persisted unchanged and has heretofore been recognized by this court. See Taylor v. Taylor (Fla.App. 1960), 119 So.2d 811, 813." Coggan v. Coggan, 239 So.2d 17, 18 (Fla. 1970).
Only one instance has come to our attention where this long standing rule has not been applied. In Potter v. Garrett, 52 So.2d 115 (Fla. 1951), a case strikingly similar to the case sub judice, the Florida Supreme Court permitted a set-off of one-half the rental value of a house.
However, in view of the recent affirmance of the common law rule in Coggan v. Coggan, supra, we believe that Potter v. Garrett, supra, has been impliedly overruled,[1] and that therefore it was error for the trial court to allow one-half of the reasonable rental value of the land as an offset.
Accordingly, the final judgment is reversed and the cause remanded for further proceedings consistent with the views expressed herein.
Reversed and remanded.
OWEN, J., concurs.
WALDEN, J., dissents, with opinion.
WALDEN, Judge (dissenting):
I would affirm.
My review of the case law of this state, and particularly the cases cited by the majority, leaves me convinced that the trial court ruling is compatible and correct. More compellingly, this dissent is triggered by the notion that the decisional process of Florida should not be shackled by an automatic and unnecessary invocation of an ancient rule absolute that operates in every circumstance regardless of fairness, equity and the present day practicalities of life. It seems to me that the judicial function is not merely mechanical and that under the circumstances of this case an exception to the rule is sanctioned and in order.
As used by the majority in reaching their decision to reverse, there is, indeed, a generally accepted common law rule. It is that a cotenant in possession of the common property is not liable to his cotenants for the value of its use and occupation where such absent cotenants have not been ousted, excluded, or their equal rights denied. See 20 Am.Jur.2d, Cotenancy and Joint Ownership, § 41.
Without doubt this is a salutory principle that brings about a just result in the average or usual situation.
To mention some bases for the rule,
"(1) Each cotenant was entitled to the occupation of the premises; as long as one did not exclude the other, he was free to possess and enjoy as he pleased; the one who did not choose to exercise his right was deemed to relinquish it to the other.  Thompson v. Flynn, 102 Mont. 446, 58 P.2d 769.
"(2) This rule has its foundation in the fact that each cotenant is entitled to occupy the property, and that sometimes property can be made to produce revenue only through the efforts of the occupant, and often this is insufficient to justify the payment of rent; where this is true, it would be an injustice to the occupant afterward to demand of him that he pay for the use of the property; consequently, where one tenant in common occupies more than his share of the property without complaint from the other cotenants, *437 this raises a presumption of willingness on their part to allow the occupant all he can get out of the use of the property.  Roberts v. Roberts, 136 Tex. 255, 150 S.W.2d 236, 136 A.L.R. 1019." 86 C.J.S. Tenancy in Common, § 46, at page 408.
To put it another way, the unilateral decision of one cotenant to vacate should not change his status into that of a landlord over the remaining cotenant in possession so that the remaining cotenant would be accountable for rent to the departee. But this supposes, obviously, that the absentee is free and able to remain or to return and take his place as an equal occupant and cotenant in possession.
Can there be an exception to this rule? It is here that the majority and this writer part company, as I suggest that a creditable basis therefor exists where special property characteristics, limitations and circumstances are such as to reasonably preclude joint occupancy. Such an exception is recognized and delineated in Annot. 51 A.L.R.2d, Cotenants  Rents and Profits  Use, § 15, p. 443 (1957), as follows:
"The cases abundantly illustrate that in many instances continued ownership of real estate by two or more persons is likely to prove awkward and unsatisfactory because of a difficulty, or practical impossibility, of satisfactory concurrent personal use or occupancy. The difficulty of course is most acute where the property consists of a single small residence or a small place of business, and it is with reference to property of the latter character that some of the cases have departed from the principles usually applied to cotenancies and have held the occupying cotenant liable respecting the rental value even though he does not deny the cotenancy or the equal rights of his cotenants and is guilty of nothing except making a normal use of the property."
See also 20 Am.Jur.2d, Cotenancy and Joint Ownership, § 42. Further, there are some courts in proceedings of an equitable nature that simply decide the issue on the basis of equity and fairness and do allow a rental value. 20 Am.Jur.2d, Cotenancy and Joint Ownership, § 44.
And what are the facts here that qualify it under such exception?
The parties were earlier married and then divorced. Upon termination of the marriage relationship their jointly acquired and shared homeplace  a single family residence  was legally transformed from a tenancy by the entirety into a tenancy in common. This man and woman  not now married or related to one another, now separated and hostile  became cotenants and equally entitled to the use and occupancy of the residence which the trial court found to be non-divisible. The man, on his own motion, went into exclusive occupancy and now the woman, upon partition, seeks an allowance of one-half of the rental value for the man's exclusive use and occupancy, as an offset against certain property-related claims of the man. There was unrebutted evidence that the reasonable rental value was from $250 to $350 per month. The trial court recognized her claim, and correctly so, I believe.
Surely the above facts reflect the total impracticability of joint possession by these parties and indicate that an exception to the rule is highly indicated. It's just unreal to say that the parties are unable to live together in marriage, but that there is no bar to their thereafter sharing a single family residence as single persons.
All know that often in the exercise of jurisdictions in the aftermath of marital litigation the trial court awards possession to one of the parties for a time of the jointly owned homeplace. Frequently one of the parties is required to pay for upkeep and mortgage payments, and other expenses. Not infrequently there are accountings made post trial by the court as to the equities. With all of this, it seems strangely delimitating with reference to such property to render the trial court impotent in *438 evaluating the advantage accruing to one by having possession and the disadvantage to the other in having to live elsewhere.
Now for an analysis of the four cases mentioned in the majority decision to reverse, they being Bird v. Bird, 15 Fla. 424 (Fla. 1875); Taylor v. Taylor, 119 So.2d 811 (Fla.App. 1960); Coggan v. Coggan, 239 So.2d 17 (Fla. 1970); Potter v. Garrett, 52 So.2d 115 (Fla. 1951).
Bird, Taylor and Coggan all fit the general rule and there was no basis for believing that it would be difficult or unsatisfactory for the absent cotenant to enjoy concurrent use. Bird dealt with the crops grown on a farm. Taylor dealt with a 92-acre farm which had no rental value. Coggan dealt with an office building. Thus, the rental value claim was correctly denied under authority of the general common law rule. In those cases the property, unlike the house in this instance, was not of such nature that joint occupancy was precluded.
But now we come to Potter v. Garrett, supra, a case that reaches a different result. While not bespeaking the exception in so many words, it tacitly recognizes same by awarding rent to the absent cotenant. It is well further to say that this case has not been overruled except as such effort may be found in the majority opinion. Homestead residential property descended to two daughters. Several years later one sued the other in partition. There were conflicting claims with one claiming sums for mortgage payments made, taxes, repairs, improvements, etc., on account of the property. The other responded asking a reasonable rental of the homestead property for the time it was occupied by the adverse party. The Supreme Court of Florida held:
"We think appellee is entitled to reimbursement for one-half the money she paid on the principal and interest of the mortgage, for taxes and insurance and for other moneys she spent on essential improvements to preserve the property. The appellant is entitled to have credited against this amount one-half of such sum or sums as may be found to be a reasonable rental for the use of the property during the time it was occupied by appellee after the death of the last parent." At p. 116. (Emphasis supplied.)
Potter clearly reflects an instance where rental value was allowed a cotenant where special facts obtained, and it is of interest to note that such facts were indeed much less impressive and determinative than those in the instant appeal.
Thus, I suggest again that the trial court ruling is compatible with the four mentioned cases and same should be affirmed upon exact authority of Potter, supra.
Finally, as a policy support, I feel we should vest discretion in this area in the trial courts and not hamstring so that they are left powerless to adjust the equities and rights of the parties as may be dictated by the justice of the cause.
No error having been demonstrated, I would affirm.
NOTES
[1]  But see Taylor v. Taylor, 119 So.2d 811 (Fla.App. 1960).


 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000661
                                                              18-JUN-2014
                                                              07:54 AM

                            SCWC-11-0000661

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                          STATE OF HAWAI#I,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                       STANLEY K. HUIHUI, JR.,
                  Petitioner/Defendant-Appellant.

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-11-0000661; FC-CR. NO. 10-1-27K)

                        MEMORANDUM OPINION
   (By: Recktenwald, C.J., Nakayama, McKenna and Pollack, JJ.,
   and Circuit Judge Sakamoto, in place of Acoba, J., recused)

           Following a bench trial, Petitioner Stanley K. Huihui,

Jr. (Huihui) was convicted of Abuse of Family or Household

Members, Terroristic Threatening, and Unlawful Imprisonment.              His

convictions were affirmed by the Intermediate Court of Appeals

(ICA).   On application to this court, Huihui contends that the

Family Court of the Third Circuit (family court) abused its

discretion when it precluded evidence of the complaining

witness’s (CW’s) propensity for self-harm.         Because such evidence
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

would have been relevant to establish that Huihui reasonably

believed that the CW was attempting to harm herself, it should

have been admitted.

                              I. BACKGROUND

          Huihui’s appeal arises from an incident where he

allegedly confined the CW in his vehicle, threatened her, and

committed various acts of physical abuse on her person.            Huihui

was charged by complaint with one count of Abuse of Family or

Household Members, HRS § 709-906, one count of Terroristic

Threatening in the Second Degree, HRS §§ 707-715(1) and 707-

717(1), and one count of Unlawful Imprisonment in the Second

Degree, HRS § 707-722(1).

          Prior to trial, Huihui filed a motion to introduce

character evidence of the CW’s “suicidal tendencies” pursuant to

Hawai#i Rules of Evidence (HRE) Rule 404(a)(2).          The family court

did not dispose of Huihui’s motion until August 10, 2011, when

the case proceeded to a bench trial.1        At the start of the

proceedings, Huihui made an oral motion to introduce an audio

recording:
          DEFENSE COUNSEL: I’ll do also an oral motion in limine
          regarding . . . an audio recording that was provided . . .
          to me by the State. That audio recording occurred . . . two
          or three days prior to this incident.

          THE COURT: When did you receive this recording?

          DEFENSE COUNSEL: I received the recording . . . last week.

     1
          The Honorable Joseph P. Florendo, Jr. presided.

                                     2
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

          I actually requested the recording because . . . the
          defense, would like to introduce it. I think that the State
          with my discussions with [the Prosecutor] stated that there
          would be an objection regarding relevance[,] so we could
          address . . . whether that recording will be allowed into
          evidence or not.

          THE COURT: Well, why don’t you wait until that time comes.

          DEFENSE COUNSEL: We can do it that way, too.

          The trial itself hinged on a credibility determination:

Whether to believe the CW’s or Huihui’s version of events.              The

CW testified as follows.      She and Huihui got into an argument

while driving in Huihui’s truck.         Huihui eventually pulled his

truck to the side of the road and punched the CW in the face.

When the CW tried to open her passenger-side door, Huihui grabbed

her arm and told her that if she got out, he was going to punch

her in the face again.     The CW then jumped into the back seat of

the truck, where her daughter was seated.         Huihui grabbed the CW

by the hair and yanked her back into the front seat.            The CW

again tried to open her door and Huihui punched her in the face.

          Huihui testified to a substantially different version

of events.   He claimed that while driving in his truck, the CW

accused him of having a sexual relationship with another woman.

The argument escalated until the CW tried to open the passenger-

side door.   Huihui testified that he believed she was going to

jump out of the moving truck.       Huihui grabbed the door handle and

told the CW that if she wanted to get out he would stop the

                                     3
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

truck.    Huihui then pulled to the side of the road and offered to

let the CW out.      The CW remained in the vehicle.

            Huihui resumed driving at approximately 55-miles-per-

hour.    Shortly thereafter, the CW opened the passenger-side door

and attempted to jump from the moving truck.            Huihui testified

that he grabbed the CW by the hair to keep her from falling out.

Huihui held the CW by the hair until he could bring his truck to

a stop.    As the truck slowed, the CW repeatedly slammed into the

side of the truck, sustaining several injuries.            Once the truck

had come to a stop, Huihui pulled the CW by the hair back into

the front seat, where she hit her head on the gear shift.

            At this point, Huihui’s attorney attempted to introduce

evidence that the CW had threatened to harm herself on prior

occasions:
            DEFENSE COUNSEL: Have you had any prior contact with [the
            CW] where she threatened to hurt herself?

            PROSECUTOR: Objection. . . . Relevance.

            THE COURT: Sustained.

            DEFENSE COUNSEL: Your Honor, . . . it is character evidence
            but I believe it is permissible under 404 – 404(a)(2), . . .
            evidence of [the] character of the victim is . . .
            admissible . . . to show that she was acting . . . to harm
            herself during this incident and that she had done so or
            threatened to do so on prior occasions.

            THE COURT: Character is not at issue in this case.

            DEFENSE COUNSEL: [The CW] did attempt to harm herself by
            jumping out of the car.

            THE COURT: It’s not a character question in my mind.

            DEFENSE COUNSEL:   Well, the character of . . . having

                                       4
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

          suicidal tendency[.]

          THE COURT: You need more foundation in order to establish
          that the acts in this case were suicidal.

          DEFENSE COUNSEL: Your   Honor, just evidence that the victim
          attempted to jump out   of the car while going 55, I think
          that’s circumstantial   evidence [that] a person has . . .
          suicidal traits or at   least traits that she wants to harm
          herself.

          THE COURT: I’ll sustain the objection.

          At the close of trial, Huihui was found guilty of all

three charges and sentenced accordingly.           Huihui timely appealed

to the ICA, which affirmed the family court’s judgment and

conviction.

                        II. STANDARD OF REVIEW

          Evidentiary rulings made on the basis of HRE Rule 404

are reviewed for abuse of discretion.         State v. Richie, 88

Hawai#i 19, 36, 960 P.2d 1227, 1244 (1998).
          Evidentiary decisions based on HRE Rule 403, which require a
          judgment call on the part of the trial court, are reviewed
          for an abuse of discretion. HRE 404 represents a
          particularized application of the principle of HRE 403 (see
          Commentary to HRE 404), and we will employ the same abuse of
          discretion standard of review.

Id. (internal quotation marks and citations omitted).

          Under the abuse of discretion standard
          the trial court may not be reversed by an appellate court
          unless the trial court clearly exceeded the bounds of reason
          or disregarded rules or principles of law or practice to the
          substantial detriment of a party litigant. Under that
          standard different trial judges may, on the same facts,
          arrive at opposite rulings without any of them being
          reversible on appeal.

Kealoha v. Cnty. of Hawai#i, 74 Haw. 308, 318, 844 P.2d 670, 675

                                      5
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

(1993) (citation and quotations omitted).

          Where evidence is improperly excluded, the judgment of

the trial court must be reversed unless it can affirmatively be

said that the exclusion was harmless beyond a reasonable doubt.

See State v. Perez, 64 Haw. 232, 234, 638 P.2d 335, 337 (1981);

State v. Russo, 67 Haw. 126, 138, 681 P.2d 553, 563 (1984).

                            III. DISCUSSION

          In this case, the family court abused its discretion

when it excluded evidence of the CW’s propensity for self-harm.

A.   Relevance

          HRE Rule 401 (2004) states that evidence is relevant if

it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.”            See also

State v. Maddox, 116 Hawai#i 445, 457, 173 P.3d 592, 604 (App.

2007) (stating that character evidence “is properly excluded

where the evidence at trial does not support a factual dispute”

that is of consequence to the action).

          Character evidence that the CW had a propensity for

self-harm was relevant to Huihui’s defense.          A defendant may make

out a choice of evils defense if, among other things, the

defendant reasonably believed that his or her action was

necessary to avoid an imminent harm.        See HRS §§ 703-300,

                                     6
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

703-302(1) (1993).    Huihui’s testimony indicated that the CW

sustained her injuries in an apparent suicide attempt, and that

his act of pulling the CW by the hair was motivated by his belief

that the CW was attempting to harm herself.          Thus, a fact “of

consequence to the determination of the action” was whether a

reasonable person would believe that the CW was attempting to

harm herself.

            If the CW had a propensity for self-harm, then it is

more likely that she actually attempted to jump from a vehicle

moving at 55-miles-per-hour.      If that were true, then it would

support the conclusion that Huihui reasonably believed he needed

to grab the CW’s hair and/or confine her to his vehicle to

prevent an imminent harm.      Thus, evidence of the CW’s prior

attempts to harm herself would make the occurrence of a fact of

consequence more likely.      The family court erred when it

concluded that such evidence was irrelevant.

B.   Character Evidence

            Having established that evidence of the CW’s propensity

for self-harm was relevant, Huihui should have been allowed to

introduce that evidence pursuant to the rules governing character

evidence.    HRE Rule 404(a) (2004) states: “Evidence of a person’s

character or a trait of a person’s character is not admissible

for the purpose of proving action in conformity therewith on a

                                     7
  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

particular occasion[.]”       However, HRE Rule 404(a)(2) allows the

accused to introduce “[e]vidence of a pertinent trait of

character of the victim of the crime[.]”          See also State v.

Basque, 66 Haw. 510, 512, 666 P.2d 599, 601 (1983) (“‘[A]

defendant who claims self-defense to a charge of homicide is

permitted to introduce evidence of the [victim’s] violent or

aggressive character either to demonstrate the reasonableness of

his apprehension of immediate danger or to show that the [victim]

was the aggressor.’”) (quoting State v. Lui, 61 Haw. 328, 330,

603 P.2d 151, 154 (1979)).       Here, the CW’s propensity for self-

harm was a pertinent character trait, and evidence tending to

establish that trait should have been admitted pursuant to HRE

Rule 404(a)(2).2     Because there is a reasonable possibility that

the family court’s error might have contributed to Huihui’s

conviction, we cannot say that it was harmless beyond a

reasonable doubt.

C.    Foundation

            The family court also precluded evidence of the CW’s

propensity for self-harm because it concluded that Huihui had not

laid adequate foundation to establish that the acts in this case

were suicidal.     Huihui testified that the CW attempted to jump

      2
            Accordingly, we need not address whether evidence of the CW’s
prior attempts to harm herself should have been admitted pursuant to HRE Rule
404(b).

                                      8
  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

from a vehicle that was traveling at approximately 55-miles-per-

hour.   No further foundation was required to establish that the

CW’s alleged action was an attempt at self-harm.

                              IV. CONCLUSION

            For the reasons set forth above, we vacate the ICA’s

November 1, 2013 judgment on appeal and the family court’s

August 10, 2011 judgment of conviction and sentence.             This case

is hereby remanded to the family court for further proceedings

before a different judge.3

            DATED:   Honolulu, Hawai#i, June 18, 2014.

Craig W. Jerome                           /s/ Mark E. Recktenwald
(Summer M.M. Kupau with him
on the briefs) for petitioner             /s/ Paula A. Nakayama

Jason R. Kwiat                            /s/ Sabrina S. McKenna
(Kimberly B. Taniyama and
Linda L. Walton with him on               /s/ Richard W. Pollack
the briefs) for respondent
                                          /s/ Karl K. Sakamoto

      3
            This case must be resolved before a different judge on remand
because the family court made problematic statements during sentencing
allocution.

                                      9


3 F.3d 437
U.S.v.Peru*
NO. 92-9116
United States Court of Appeals,Fifth Circuit.
Aug 17, 1993

1
Appeal From:  N.D.Tex.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


158 F.3d 588
Langev.Orrico***
NO. 97-5451
United States Court of Appeals,Eleventh Circuit.
September 14, 1998

1
Appeal From:  S.D.Fla. , No.95-08403-CV-FAM

2
Affirmed.

*
 Fed.R.App.P. 34(a); 11th Cir.R. 34-3

**
 Local Rule 36 case


519 F.3d 1025 (2008)
Raymond MANZAREK; Doors Touring, Inc., a California corporation, Plaintiffs-Appellants,
v.
ST. PAUL FIRE & MARINE INSURANCE COMPANY, a Minnesota corporation, Defendant-Appellee.
No. 06-55936.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted February 11, 2008.
Filed March 25, 2008.
*1026 *1027 Kirk A. Pasich, Esq., Dickstein Shapiro LLP, Los Angeles, CA, for the plaintiffs-appellants.
Andrew R. McCloskey, Esq., Riedl, McCloskey & Waring LLP, San Diego, CA, for the defendant-appellee.
Before ALFRED T. GOODWIN, BETTY B. FLETCHER, and N. RANDY SMITH, Circuit Judges.

OPINION
N.R. SMITH, Circuit Judge:
We hold that the district court erred by dismissing Raymond Manzarek's and Doors Touring, Inc.'s ("DTI") amended complaint because the underlying complaints raised at least the potential for coverage under the operative insurance policies. We further hold that the district court abused its discretion by not giving Manzarek and DTI an opportunity to amend their complaint. We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand for further proceedings.
I. Background
A. Underlying Lawsuits
This insurance coverage and bad faith lawsuit arose out of two lawsuits ("Underlying Lawsuits") filed in California state court against Manzarek (a founding member of the classic rock group The Doors), DTI, and the other members of Manzarek's band at the time of the filing of the lawsuits. John Densmore (the former drummer for The Doors) filed one of the Underlying Lawsuits ("Densmore Lawsuit"). The parents of Jim Morrison (the former vocalist for The Doors) and the parents of Pamela Courson (Morrison's late wife) together filed the other underlying lawsuit ("Courson Lawsuit"). Both Underlying Lawsuits alleged that Manzarek and members of his band were liable for infringing on The Doors name, trademark, and logo in conjunction with their *1028 planned national and international tours. Both Underlying Lawsuits included allegations against Manzarek and DTI for the improper use of The Doors logo in conjunction with the marketing of products and merchandise. Additionally, the Densmore Lawsuit alleged that the breaches by Manzarek and his band caused Densmore to suffer economic damages as well as damage to his "reputation and stature by causing people to believe that he was not, and is not, an integral and respected part of The Doors band, or is one member who easily can be replaced by another drummer."
The state trial court consolidated the Underlying Lawsuits for trial but reserved some equitable claims for determination by the court. At trial, the jury found Manzarek and the other defendants liable on some claims but awarded no damages. The record before us is not clear what result the state trial court reached on the equitable claims that it removed from the jury's consideration. Manzarek's and DTI's defense fees and costs in the Underlying Lawsuits exceeded $3 million.
B. The Policies
From May 24, 2002 to May 24, 2003, St. Paul Fire & Marine Insurance Company ("St. Paul") insured Manzarek only under a commercial general liability policy ("Manzarek Policy"). The Manzarek Policy was effective beginning on May 24, 2002 but St. Paul did not issue it until October 3, 2002. From December 30, 2002 to December 30, 2003, St. Paul insured Manzarek, DTI, and Robert Krieger[1] under another commercial general liability policy ("DTI Policy"). The DTI Policy was effective beginning on December 30, 2002, but St. Paul did not issue it until February 19, 2003. It is not clear from our review of the record when St. Paul actually delivered copies of the Manzarek Policy or the DTI Policy to its insureds, though the complaint in this action alleges that St. Paul did not deliver the DTI Policy until sometime after February 28, 2003.
Among other things, both of the commercial general liability policies ("Policies") insured against the occurrence of "bodily injury," "property damage," "personal injury," and "advertising injury." Manzarek and DTI argue, and St. Paul concedes, that some of the alleged conduct falls within the "advertising injury" portion of the Policies. That portion of the Policies contains the following provisions:
Advertising injury liability. We'll pay amounts any protected person is legally required to pay as damages for covered advertising injury that:
 results from the advertising of your products, your work, or your completed work; and
 is caused by an advertising injury offense committed while this agreement is in effect.

Advertising injury offense means any of the following offenses:
 Libel, or slander, in or with covered material.
 Making known to any person or organization covered material that disparages the business, premises, products, services, work, or completed work of others.
 Making known to any person or organization covered material that violates a person's right of privacy.
 Unauthorized use of any advertising idea or advertising material, or any slogan or title, of others in your advertising.

*1029 Advertising means attracting the attention of others by any means for the purpose of:
 seeking customers or supporters; or
 increasing sales or business.

Advertising idea means a manner or style of advertising that others use and intend to attract attention in their advertising.
But we won't consider information used to identify or record customers or supporters, such as a list of customers or supporters, to be an advertising idea.

Advertising material means any covered material that:
 is subject to copyright law; and
 others use and intend to attract attention in their advertising.
Both Policies also contain a Field of Entertainment Limitation Endorsement ("FELE") which "changes [the insured's] Commercial General Liability Protection" and "reduces coverage." In relevant part, the FELE "reduces coverage" as follows:
Field of Entertainment. We won't cover personal injury or advertising injury that results from the content of, or the advertising or publicizing for, any Properties or Programs which are within your Field of Entertainment Business.

Properties or Programs means any of your properties, products, programs, materials or other matter.

Field of Entertainment Business includes the following;
 The creation, production, publication, distribution, exploitation, exhibition, advertising and publicizing of product or material in any and all media such as motion pictures of any kind and character, television programs, commercials or industrial or educational or training films, phonograph records, audio or video tapes, CDs or CD ROMs, computer on-line services or internet or Web site pages, cassettes or discs, electrical transcriptions, music in sheet or other form, live performance, books or other publications.
 The ownership, operation, maintenance or use of radio and television broadcasting stations. CATV systems, cinemas, stage productions with living actors, and any similar exhibition or broadcast media.
 The ownership, operation maintenance or use of merchandising programs, advertising or publicity material, characters or ideas: whether or not on your premises or in your possession at the time of the alleged offense.
As referenced above, both Policies also insured against the occurrence of "bodily injury." The Policies define "bodily injury" to mean "any physical harm, including sickness or disease, to the physical health of other persons." The Policies include mental anguish, injury, or illness, and emotional distress in the definition of covered "bodily injuries."
C. The Instant Action
On February 5, 2003, Manzarek and DTI notified St. Paul of the Densmore Lawsuit. St. Paul responded by letter on February 18, 2003. That letter notified Manzarek and DTI that, although St. Paul was still investigating coverage issues, its preliminarily determination was that the Policies did not cover the Densmore Lawsuit. According to the complaint, St. Paul delivered this letter before it issued the DTI Policy or delivered a copy of it to its insureds. St. Paul did not issue the DTI Policy until February 19, 2003nearly two weeks after Manzarek and DTI tendered a copy of the Densmore Lawsuit to St. Paul. The complaint also alleges that St. Paul preliminarily denied coverage before it considered the language contained in either of the Policies.
*1030 On March 5, 2003, St. Paul notified Manzarek and DTI that both Policies contained the FELE. St. Paul denied coverage and refused to defend the Densmore Lawsuit on that basis. On March 19, 2003, St. Paul reiterated the applicability of the FELE and notified Manzarek and DTI that the Policies did not obligate it to defend or indemnify the Densmore Lawsuit.
Thereafter, Manzarek and DTI tendered the Courson Lawsuit to St. Paul. On May 6, 2003, St. Paul advised its insureds that the Policies did not provide coverage for the Courson Lawsuit. St. Paul therefore denied coverage and declined to defend the Courson Lawsuit based on its interpretation of the FELE. In the months that followed, Manzarek and DTI continued to demand a defense under the Policies and St. Paul persisted in its refusal to defend or indemnify its insureds.
Manzarek and DTI filed this coverage and bad faith lawsuit against St. Paul in Los Angeles Superior Court approximately two years later. On April 5, 2006, Manzarek and DTI voluntarily amended their complaint. The amended complaint contained claims against St. Paul for (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; and (3) declaratory relief.
St. Paul removed the action to the United States District Court on April 6, 2006. On April 11, 2006, St. Paul filed a motion to dismiss the first amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court heard argument on St. Paul's motion to dismiss on May 15, 2006 and entered a two-line docket entry granting the motion to dismiss that same day. The docket entry by the district court states that "[t]he court GRANTS the motion. Defendants shall submit a proposed order." On May 18, 2006, St. Paul provided the district court with a proposed order granting the motion to dismiss with prejudice.
The district court signed St. Paul's proposed order on May 19, 2006. The clerk entered the order on May 22, 2006. That order dismissed with prejudice Manzarek's and DTI's claims for breach of contract and breach of the implied covenant of good faith and fair dealing, holding that the FELE was conspicuous, plain, clear, and unambiguous. Consequently, the district court held that St. Paul owed Manzarek and DTI no duty to defend or indemnify against the claims in the Underlying Lawsuits. Additionally, the district court found that "[a]mendment of Plaintiffs' First Amended Complaint would be futile because plaintiffs would be unable to allege facts that would alter these strictly legal determinations."
Manzarek and DTI appeal the district court's order granting the motion to dismiss. Manzarek and DTI contend that the district court erred by (1) holding that no duty to defend existed under the Policies; (2) dismissing their claim for breach of contract; and (3) dismissing their claim for breach of the implied covenant of good faith and fair dealing. Alternatively, Manzarek and DTI argue that the district court should have allowed them the opportunity to amend their complaint to state a viable claim for relief against St. Paul. Manzarek and DTI argue that the district court abused its discretion by not giving them a chance to amend.
II. Standard of Review
We review de novo the district court's decision to grant St. Paul's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir.2007) (internal citation omitted). "When ruling on a motion to dismiss, we may `generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters *1031 properly subject to judicial notice.'" Id. at 899-900 (quoting Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.2007)). We accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party. Id. at 900. We need not accept as true conclusory allegations that are contradicted by documents referred to in the complaint. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal citation omitted).
"Denial of leave to amend is reviewed for an abuse of discretion." Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir.2002). "`Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.'" Id. (quoting Polich v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir.1991)).
III. Discussion
In this diversity case, we must apply California law when interpreting the Policies. See Aetna Cas. & Sur. Co., Inc. v. Centennial Ins. Co., 838 F.2d 346, 350 (9th Cir.1988). Interpretation of insurance contracts under California law requires us to employ general principles of contract interpretation. MacKinnon v. Truck Ins. Exch., 31 Cal.4th 635, 3 Cal.Rptr.3d 228, 73 P.3d 1205, 1212 (2003); Safeco Ins. Co. of Am. v. Robert S., 26 Cal.4th 758, 110 Cal.Rptr.2d 844, 28 P.3d 889, 893 (2001). Under California law, we are to give effect to the "mutual intention of the parties at the time the contract is formed." MacKinnon, 73 P.3d at 1213; see Cal. Civ. Code § 1636.
Clear, explicit, and unambiguous contractual language governs. See Boghos v. Certain Underwriters at Lloyd's of London, 36 Cal.4th 495, 30 Cal.Rptr.3d 787, 115 P.3d 68, 71 (2005); Cal. Civ.Code § 1638. In the event of an ambiguity, we must interpret contractual terms to "protect the objectively reasonable expectations of the insured." Boghos, 115 P.3d at 71 (internal quotation marks and citations omitted). "Only if these rules do not resolve a claimed ambiguity do we resort to the rule that ambiguities are to be resolved against the insurer." Id.
A. Breach of Contract
Manzarek and DTI assert that the district court erred by dismissing their claim for breach of contract with prejudice because the allegations in the Underlying Lawsuits triggered a contractual duty to defend. For the reasons set forth below, we agree.
1. Applicable Law
a. Scope of Duty to Defend
Under California law, an insurer must defend its insured "if the underlying complaint alleges the insured's liability for damages potentially covered under the policy, or if the complaint might be amended to give rise to a liability that would be covered under the policy." Montrose Chem. Corp. v. Superior Court, 6 Cal.4th 287, 24 Cal.Rptr.2d 467, 861 P.2d 1153, 1160 (1993) (citation omitted). The duty to defend is broader than the duty to indemnify. Id. at 1157. Even if no damages are awarded, the duty to defend may still exist. Id. "`The determination whether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy.'" Id. (quoting Horace Mann Ins. Co. v. Barbara B., 4 Cal.4th 1076, 17 Cal.Rptr.2d 210, 846 P.2d 792, 795 (1993)). "Any doubt as to whether the facts establish the existence of the defense duty must be resolved in the insured's favor." Montrose Chem. Corp., 861 P.2d at 1160. If any of the claims in the underlying complaint are covered, the insurer has a duty to defend the entire action. *1032 Horace Mann Ins. Co., 846 P.2d at 797-98. The court may consider facts outside the complaint "`when they reveal a possibility that the claim may be covered by the policy.'" Id. at 795.
b. Enforceability of Coverage Limitations
"[I]nsurance coverage is interpreted broadly so as to afford the greatest possible protection to the insured, [whereas] exclusionary clauses are interpreted narrowly against the insurer." MacKinnon, 73 P.3d at 1213 (internal quotation marks and citation omitted) (bracketed text in original); see Mariscal v. Old Republic Life Ins. Co., 42 Cal.App.4th 1617, 50 Cal.Rptr.2d 224, 227 (1996) (recognizing that "exclusions are strictly interpreted against the insurer"). An "exclusionary clause must be conspicuous, plain and clear." MacKinnon, 73 P.3d at 1213 (internal quotation marks and citation omitted). "This rule applies with particular force when the coverage portion of the insurance policy would lead an insured to reasonably expect coverage for the claim purportedly excluded." Id. "The burden is on the insured to establish that the claim is within the basic scope of coverage and on the insurer to establish that the claim is specifically excluded." Id. "Coverage may be limited by a valid endorsement and, if a conflict exists between the main body of the policy and an endorsement, the endorsement prevails." Haynes v. Farmers Ins. Exch., 32 Cal.4th 1198, 13 Cal.Rptr.3d 68, 89 P.3d 381, 385 (2004).
2. Analysis
The district court signed and entered St. Paul's proposed order granting St. Paul's motion to dismiss the claim for breach of contract. The order states that "[t]he FELE was sufficiently conspicuous" and notes that "[i]n addition to being conspicuously referenced in the policy declarations and attached as a separate endorsement, the language of the FELE [was] plain and clear." The district court then concluded that based on the plain and clear language of the FELE, it was reasonable for St. Paul to believe its insureds understood the limiting effect of the FELE on advertising injury coverage under the Policies. Based on that conclusion, the district court dismissed the breach of contract claim with prejudice.
The fundamental problem with the district court's decision is that it fails to apply the language of the FELE to the factual allegations contained in the complaints filed in the Underlying Lawsuits. The FELE excludes coverage for the "advertising or publicizing for, any Properties or Programs which are within your Field of Entertainment Business." Contrary to the interpretation adopted by the district court, the definition of Field of Entertainment Business is not broad enough to cover the entirety of the allegations in the Underlying Lawsuits. In relevant part, the Policies define "Field of Entertainment Business" as follows:
The creation, production, publication, distribution, exploitation, exhibition, advertising and publicizing of product or material in any and all media such as motion pictures of any kind and character, television programs, commercials or industrial or educational or training films, phonograph records, audio or video tapes, CDs or CD ROMs, computer on-line services or internet or Web site pages, cassettes or discs, electrical transcriptions, music in sheet or other form, live performance, books or other publications.
(Emphasis added).
California law requires us to adopt a narrow construction of the FELE. With such narrow construction, the FELE would not exclude advertising injury coverage if, for example, Manzarek and DTI *1033 began distributing "The Door's Own" line of salad dressing.[2] Advertising injury coverage for such a product would still exist because Manzarek and DTI would not necessarily publicize, distribute, exploit, exhibit, or advertise in media such as motion pictures, etc. For similar reasons, the FELE would not completely exclude advertising injury coverage if Manzarek and DTI began marketing a line of t-shirts or electric guitars with The Doors logo or Morrison's likeness on them. Although marketing these products would undoubtedly expose Manzarek and DTI to a claim for advertising injury, Manzarek and DTI would still enjoy advertising injury coverage under the Policies.
In this case, the Underlying Lawsuits allege that Manzarek and DTI marketed products and merchandise at their concerts and on The Doors official website. The Underlying Lawsuits, however, are silent about what type of products and merchandise that Manzarek and DTI produced and marketed. For all St. Paul knew when it denied coverage, the products marketed by Manzarek and DTI included guitars, t-shirts, and perhaps (although we realize it is not likely) salad dressing bottles with The Doors logo and/or Morrison's likeness affixed to them. These allegations raised a potential for coverage under the Policies and, for that reason, the district court erred by summarily dismissing Manzarek's and DTI's breach of contract claim.
Additionally, the district court erred by dismissing the breach of contract claim because the Underlying Lawsuits raised a potential for coverage under the "bodily injury" portion of the Policies. The Densmore Lawsuit contained an allegation that Manzarek's and DTI's actions caused damage to Densmore's "reputation and stature by causing people to believe that he was not, and is not, an integral and respected part of The Doors band, or is one member who easily can be replaced by another drummer." This allegation was sufficient to raise the potential of an award of mental anguish or emotional distress damages. For that additional reason, the district court erred by dismissing the breach of contract claim.
Finally, the district court held that dismissal was appropriate because "[s]ince the FELE was conspicuous, plain and clear, it was reasonable for St. Paul to believe the insured understood it." We also find this problematic, because we must take the allegations in the complaint as true. The complaint makes clear that St. Paul had not yet delivered or issued the DTI Policy to Manzarek and/or DTI when Manzarek and DTI demanded coverage under the Policies. The record is silent about when St. Paul delivered the Manzarek Policy. It should go without saying that an insured cannot be deemed to reasonably understand the terms of a policy he or she has not seen or fully comprehend the exclusionary language of a policy that has not yet been issued. In light of those facts, again under the deferential standard of review applicable to a motion to dismiss, it is far from clear that "it was reasonable for St. Paul to believe the insured understood" the impact of the FELE on advertising and personal injury coverage. Thus, it was error for the district court to adopt St. Paul's proposed order and dismiss the breach of contract claim.
B. Breach of the Implied Covenant of Good Faith and Fair Dealing
The entirety of the district court's analysis regarding its decision to dismiss Manzarek's and DTI's claim for breach of the *1034 implied covenant of good faith and fair dealing is encapsulated in the following sentence: "St. Paul did not breach the covenant of good faith and fair dealing in denying coverage or in declining to defend the Underlying Actions as a matter of law." This holding was in error.
California law is clear, that without a breach of the insurance contract, there can be no breach of the implied covenant of good faith and fair dealing. Waller v. Truck Ins. Exch., Inc., 11 Cal.4th 1, 44 Cal.Rptr.2d 370, 900 P.2d 619, 638-39 (1995). In Waller, the California Supreme Court stated that:
It is clear that if there is no potential for coverage and, hence, no duty to defend under the terms of the policy, there can be no action for breach of the implied covenant of good faith and fair dealing because the covenant is based on the contractual relationship between the insured and the insurer.
Id. at 639; see also Am. Med. Int'l, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 244 F.3d 715, 720 (9th Cir.2001) ("Without a right to coverage, the Waller court concluded, there is no obligation the insurer may frustrate.").
As discussed above, the district court erred by dismissing the claim for breach of contract. In light of our holding regarding the viability of that claim, the district court also erred by summarily dismissing the claim for breach of the implied covenant of good faith and fair dealing.
C. Leave to Amend
The district court also abused its discretion by failing to allow Manzarek and DTI an opportunity to amend. "Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir.1998) (internal quotation marks, brackets, and citation omitted). "The decision of whether to grant leave to amend nevertheless remains within the discretion of the district court, which may deny leave to amend due to `undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.'" Leadsinger, Inc. v. BMG Music Publ'g., 512 F.3d 522, 532 (9th Cir.2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). "An outright refusal to grant leave to amend without a justifying reason is, however, an abuse of discretion." Id. (internal citation omitted).
Here, the district court abused its discretion, because Manzarek and DTI only learned that the district court would not allow them an opportunity to remedy any perceived defects in the complaint after St. Paul submitted its proposed order, and the district court summarily signed and entered it. The district court never explained at a hearing that it intended to dismiss the complaint with prejudice. The district court's docket entry (granting the motion to dismiss) also did not reflect that the dismissal would be without leave to amend.
Though the district court signed an order, stating that "[a]mendment of Plaintiffs' First Amended Complaint would be futile because plaintiffs would be unable to allege facts that would alter these strictly legal determinations," it never allowed Manzarek and DTI a chance to explain how they could amend the complaint if allowed to do so. Indeed, according to the record before us on appeal, it appears that the district court did not even consider the viability of any potential amendments to the complaint before dismissing the complaint with prejudice.
*1035 At the appellate hearing, Manzarek's and DTI's counsel suggested that Manzarek and DTI could have made several factual amendments and clarifications to undermine St. Paul's argument that the FELE excluded all potential for coverage under the Policies. Manzarek and DTI argued that they might have amended the complaint (1) to identify the products that they marketed to make clear that the FELE did not exclude advertising injury coverage for those products; (2) to allege that they were not told of the applicability of the FELE at the time they purchased the Policies; (3) to allege that St. Paul misrepresented the terms of the Policies at the time they purchased the Policies; or (4) to allege that the FELE makes the Policies unconscionable. We express no view on the viability of these potential amendments or whether the complaint can stand without amendment. The district court should have the opportunity to reconsider its ruling on the original complaint and to consider the proposed amendments in the first instance.
This record does not evidence any other reason to deny leave to amend. There was no indication of undue delay, bad faith, or dilatory motive on the part of Manzarek or DTI. See Leadsinger, Inc., 512 F.3d at 532. There was also no showing of prejudice to St. Paul by allowing an amendment. Id. Instead, the opposite was true. The action had been in federal court for less than two months when the district court dismissed the claims with prejudice. Trial was not fast approaching. In summary, nothing in the record justified the district court's decision to enter dismissal with prejudice. The district court summarily signed and entered a written order proposed by St. Paul including such relief. The district court therefore abused its discretion by refusing to allow Manzarek and DTI an opportunity to amend their complaint before entering final judgment against them.
IV. Conclusion
We therefore reverse and remand the district court's order granting St. Paul's motion to dismiss. Taking the allegations in the complaint as true, Manzarek and DTI stated a viable claim for breach of contract against St. Paul. As a result, the district court erred by dismissing Manzarek's and DTI's claims for breach of contract and breach of the implied covenant of good faith and fair dealing. Lastly, the district court abused its discretion by failing to allow Manzarek and DTI the opportunity to amend.
REVERSED.
NOTES
[1]  The policy lists "Robbie Creeder" as an insured. This appears to be a typographical error as Robert Krieger is a founding member of The Doors and was part of Manzarek's new band.
[2]  St. Paul uses "The Doors Own" salad dressing as an example of a product that Manzarek and DTI could market and still enjoy advertising injury coverage under the Policies.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

 AUTOMATED MERCHANDISING SYSTEMS, INC.,
         a Delaware Corporation,
             Plaintiff-Appellant

                          v.

  MICHELLE K. LEE, Director, U.S. Patent and
 Trademark Office, in her official capacity as the
  Under Secretary of Commerce for Intellectual
Property and Director of the United States Patent
             and Trademark Office,
                Defendant-Appellee
              ______________________

                      2014-1728
                ______________________

   Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:13-cv-01289-AJT-
JFA, Judge Anthony J. Trenga.
                ______________________

                Decided: April 10, 2015
                ______________________

    JAMES DANIEL BERQUIST, Davidson Berquist Jackson
& Gowdey, LLP, Arlington, VA, argued for plaintiff-
appellant. Also represented by DONALD LEE JACKSON.

   MEGAN BARBERO, Appellate Staff, Civil Division,
United States Department of Justice, Washington, DC,
argued for defendant-appellee. Also represented by MARK
2                          AUTOMATED MERCHANDISING      v. LEE

R. FREEMAN, JOYCE R. BRANDA; NATHAN K. KELLEY,
WILLIAM LAMARCA, LORE A. UNT, Office of the Solicitor,
United States Patent and Trademark Office, Alexandria,
VA; DANA J. BOENTE, DAVID MOSKOWITZ, Office of the
United States Attorney for the Eastern District of Virgin-
ia, Alexandria, VA.
                 ______________________

        Before PROST, Chief Judge, TARANTO, Circuit Judge,
                 and FOGEL, District Judge. *
TARANTO, Circuit Judge.
      Automated Merchandising Systems, Inc. (AMS) peti-
tioned the United States Patent and Trademark Office to
terminate four pending inter partes reexaminations of
four AMS patents that had been the subject of a patent-
infringement suit between AMS and Crane Co., the
requester of the reexaminations. After AMS and Crane
entered into a consent judgment, which dismissed the
infringement suit and stated that the parties stipulated to
the validity of the patents, AMS argued to the PTO that
the reexaminations must stop because, under 35 U.S.C. §
317(b) (2006), the consent judgment was a “final decision
. . . entered against a party in a civil action . . . that the
party has not sustained its burden of proving the invalidi-
ty of any patent claim in suit.” The PTO denied AMS’s
petition to terminate the reexaminations.
    When AMS challenged that decision in district court
under the Administrative Procedure Act (APA), 5 U.S.C.
§§ 701–706, the court held that § 317(b) did not require
termination of the reexaminations. Automated Merch.
Sys., Inc. v. Rea, No. 1:13-CV-1289, 2014 WL 4628552, at

    *    Honorable Jeremy Fogel, District Judge, United
States District Court for the Northern District of Califor-
nia, sitting by designation.
AUTOMATED MERCHANDISING     v. LEE                          3

*3–6 (E.D. Va. Aug. 6, 2014) (AMS). The court concluded
that the consent judgment, though final, was not a deci-
sion that Crane failed to prove invalidity of the patents,
as the judgment stated, regarding invalidity, only that the
parties stipulated to validity. Id. We now affirm, though
not on the district court’s ground of § 317(b)’s inapplicabil-
ity. We conclude that AMS’s challenge to the PTO’s
refusal to terminate pending reexaminations cannot
proceed because the refusal is not a “final agency action”
under the APA, 5 U.S.C. § 704.
                       BACKGROUND
    AMS sued Crane in the Northern District of West
Virginia for infringement of four patents, U.S. Patent
Nos. 6,384,402, 6,794,634, 7,191,915, and 7,343,220. In
early 2011, years into the litigation, Crane requested an
inter partes reexamination of each patent under 35 U.S.C.
§§ 311–318 (2006). 1 Finding that Crane had raised sub-
stantial new questions of patentability as to all four
patents, the PTO initiated four inter partes reexamina-
tions. Id. §§ 312(a), 313.
     While the reexaminations were underway, AMS and
Crane settled their suit in the Northern District of West
Virginia. Pursuant to the settlement, the court issued a
consent judgment stating, in relevant part, that “[t]he
parties stipulate that [the four patents] are valid,” that
“[a]ll claims . . . are dismissed with prejudice,” and that
“[t]his judgment is final.” J.A. 62. AMS then asked the

    1   The America Invents Act (AIA) repealed the pro-
visions authorizing inter partes reexaminations. Pub. L.
No. 112-29, § 6, 125 Stat. 284, 299–305 (2011). But the
pre-AIA provisions apply here because Crane requested
the inter partes reexaminations before the effective date
of the AIA. Id. § 6(c)(3)(C), 125 Stat. at 305.
4                         AUTOMATED MERCHANDISING      v. LEE

PTO, several times, to terminate the reexaminations
under § 317(b), which read, in relevant part, as follows:
    Once a final decision has been entered against a
    party in a civil action arising in whole or in part
    under section 1338 of title 28, that the party has
    not sustained its burden of proving the invalidity
    of any patent claim in suit . . . , then neither that
    party nor its privies may thereafter request an in-
    ter partes reexamination of any such patent claim
    on the basis of issues which that party or its priv-
    ies raised or could have raised in such civil ac-
    tion . . . , and an inter partes reexamination
    requested by that party or its privies on the basis
    of such issues may not thereafter be maintained
    by the Office . . . .
    The PTO refused to terminate the reexaminations.
For example, with regard to the ’634 patent, it found no
“decision” by the West Virginia court “that [Crane] ha[d]
not sustained its burden of proving the invalidity of any
patent claim.” J.A. 75. The PTO also stated that its
refusal to terminate the proceedings was “a final agency
action.” J.A. 81, 97.
    AMS filed suit in the Eastern District of Virginia, in-
voking the court’s jurisdiction under 28 U.S.C. §§ 1331,
1338, 1346, and also relying for “jurisdiction” on the APA,
5 U.S.C. §§ 701–706, the Declaratory Judgment Act, 28
U.S.C. § 2201, and the mandamus authority of 28 U.S.C.
§ 1361. AMS argued that, in light of the consent judg-
ment, § 317(b) required the PTO to terminate the reexam-
inations. The PTO did not dispute the district court’s
authority to reach the merits of that challenge.
    The district court rejected AMS’s position on the
merits. It held that § 317(b)’s prohibition on maintaining
a reexamination does not apply unless there has been “an
actual adjudication on the merits.” AMS, 2014 WL
4628552, at *5. In AMS’s case, the district court deter-
AUTOMATED MERCHANDISING     v. LEE                         5

mined, “[t]he Consent Judgment’s . . . language . . . cannot
be reasonably understood as anything more than a will-
ingness on the part of the court to dismiss the case based
on the parties’ settlement without its adjudication of the
merits.” Id. at *4. The district court thus denied AMS’s
summary-judgment motion to terminate the reexamina-
tions and granted summary judgment in favor of the PTO.
Id. at *6.
   AMS has appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(1).
                        DISCUSSION
    We review a grant of summary judgment de novo, ap-
plying the same standard as the district court. Burandt v.
Dudas, 528 F.3d 1329, 1332 (Fed. Cir. 2008) (applying
Fourth Circuit law). If review under the APA is author-
ized, we must “hold unlawful and set aside agency action,
findings, and conclusions found to be . . . arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law.” 5 U.S.C. § 706(2).
                             A
    Although the PTO did not raise the issue before the
district court, it argues now that its refusal to terminate
the reexaminations was not a “final agency action” subject
to judicial review under 5 U.S.C. § 704. Just as AMS
treated the APA as a matter of “jurisdiction” in its com-
plaint, the PTO here characterizes the APA’s final-
agency-action requirement as “jurisdictional.” The sense
of that term the PTO invokes is one that entitles a party
to have an issue decided on appeal even when, like the
PTO here regarding the § 704 issue, it failed to raise the
issue in the district court. Appellee’s Brief at 14–22; see
Kontrick v. Ryan, 540 U.S. 443, 455 (2004).
    We need not decide whether the APA’s final-agency-
action requirement is jurisdictional in that sense. We
assume, arguendo but with some basis, that it is not. See
6                         AUTOMATED MERCHANDISING      v. LEE

Air Courier Conference of Am. v. Am. Postal Workers
Union, 498 U.S. 517, 523 n.3 (1991) (“The judicial review
provisions of the APA are not jurisdictional, Califano v.
Sanders, 430 U.S. 99 (1977), so a defense based on exemp-
tion from the APA can be waived by the Government.”).
Nevertheless, we may consider whether the APA re-
quirement is met in this case. Under certain circum-
stances, we may consider issues not previously raised,
and we find such circumstances present here.
    Considerations relevant to overlooking a failure to
preserve an issue include whether
    (i) the issue involves a pure question of law and
    refusal to consider it would result in a miscarriage
    of justice; (ii) the proper resolution is beyond any
    doubt; (iii) the appellant had no opportunity to
    raise the objection at the district court level; (iv)
    the issue presents significant questions of general
    impact or of great public concern; or (v) the inter-
    est of substantial justice is at stake.
L.E.A. Dynatech, Inc. v. Allina, 49 F.3d 1527, 1531 (Fed.
Cir. 1995) (internal quotation marks and brackets omit-
ted); see Singleton v. Wulff, 428 U.S. 106, 121 (1976) (“We
announce no general rule. Certainly there are circum-
stances in which a federal appellate court is justified in
resolving an issue not passed on below, as where the
proper resolution is beyond any doubt . . . .”).
    Several criteria for discretionary disregard of forfei-
ture combine to justify consideration of the APA issue
here. Proper resolution of the issue—which is a matter of
law and which does not involve the merits of the § 317(b)
challenge to the PTO’s decision—is beyond doubt, as
explained infra in Part B. Moreover, whether a refusal to
terminate ongoing PTO proceedings is immediately
reviewable presents a significant question of continuing
public concern, affecting a range of PTO proceedings in
the regular operation of the agency. See Cemex, S.A. v.
AUTOMATED MERCHANDISING      v. LEE                           7

United States, 133 F.3d 897, 902 (Fed. Cir. 1998) (ad-
dressing pure issue of statutory construction not raised
below—application of the Tariff Act—because the issue
involved “ ‘significant questions of general impact’ ” ). And
the issue has been fully briefed by the parties. See Inter-
active Gift Exp., Inc. v. Compuserve Inc., 256 F.3d 1323,
1345 (Fed. Cir. 2001) (“ ‘A circuit court will disregard the
rule [of waiver] in compelling circumstances[,] . . .
[p]articularly . . . if the issue has been fully briefed, if the
issue is a matter of law or the record is complete, if there
will be no prejudice to any party, and if no purpose is
served by remand . . . .’ ”) (quoting 19 James W. Moore et
al., Moore’s Federal Practice § 205.05, at 205–58 (3d ed.
1997)).
    For those reasons, we will consider whether the PTO’s
refusal to terminate the reexaminations constituted a
final agency action.
                               B
    Under the APA, “[a]gency action made reviewable by
statute and final agency action for which there is no other
adequate remedy in a court are subject to judicial review.
A preliminary, procedural, or intermediate agency action
or ruling not directly reviewable is subject to review on
the review of the final agency action.” 5 U.S.C. § 704. It
is undisputed that no statute makes the challenged
refusal to terminate the inter partes reexaminations
immediately reviewable. Accordingly, the refusal is not
reviewable unless it is a “final agency action for which
there is no other adequate remedy in a court.”
    Generally, two requirements must be met for an
agency action to be final. “First, the action must mark
the ‘consummation’ of the agency’s decisionmaking pro-
cess—it must not be of a merely tentative or interlocutory
nature. And second, the action must be one by which
‘rights or obligations have been determined,’ or from
which ‘legal consequences will flow.’” Bennett v. Spear,
8                          AUTOMATED MERCHANDISING      v. LEE

520 U.S. 154, 177–78 (1997) (citations omitted); see also
Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (“The
core question is whether the agency has completed its
decisionmaking process, and whether the result of that
process is one that will directly affect the parties.”). The
PTO’s refusal to terminate the inter partes reexamina-
tions here does not qualify as a final agency action under
those standards.
    The PTO’s refusal was anything but the “ ‘consumma-
tion’ of the [PTO’s] decisionmaking process”; it was,
instead, “interlocutory” in nature. Bennett, 520 U.S. at
178. An analogy is apt: the PTO’s refusal to stop the
proceedings here was as interlocutory, as far from final,
as the run-of-the-mill district-court denial of a motion to
dismiss. See Van Cauwenberghe v. Biard, 486 U.S. 517,
524 (1988) (noting strong general rule and narrowness of
exceptions). An ultimate merits determination regarding
the validity of any of the patent claims at issue has not
yet been reached in any of the reexamination proceedings.
The reexaminations could end with decisions in AMS’s
favor, which would moot any controversy over how to
interpret § 317(b). The PTO’s refusal to terminate simply
permits each reexamination to reach such a final disposi-
tion—nothing more. See, e.g., Chemsol, LLC v. United
States, 755 F.3d 1345, 1355 (Fed. Cir. 2014) (extending
deadline for administrative action is not final agency
action); Patlex Corp. v. Mossinghoff, 771 F.2d 480, 485
(Fed. Cir. 1985) (“The determination that a substantial
new question of patentability exists is a preliminary
decision. It is not a final determination . . . .”), modifying
758 F.2d 594 (Fed. Cir. 1985); see also FTC v. Standard
Oil Co., 449 U.S. 232, 239–43 (1980) (decision to initiate
administrative proceedings is not final agency action);
DRG Funding Corp. v. Sec’y of Hous. & Urban Dev., 76
F.3d 1212, 1214 (D.C. Cir. 1996) (“[The final-agency-
action requirement] serves several functions. It allows
the agency an opportunity to apply its expertise and
AUTOMATED MERCHANDISING     v. LEE                         9

correct its mistakes, it avoids disrupting the agency’s
processes, and it relieves the courts from having to engage
in piecemeal review which is at the least inefficient and
upon completion of the agency process might prove to
have been unnecessary.”) (internal quotation marks and
citation omitted).
    The PTO’s refusal to terminate the proceedings also is
not an action “by which ‘rights or obligations have been
determined,’ or from which ‘legal consequences will
flow.’ ” Bennett, 520 U.S. at 178. AMS has lost no patent
rights from the refusal to terminate the proceedings. Any
loss of patent rights for the patents at issue will not occur
until completion of the relevant reexamination. The only
direct consequence that flows from the PTO’s refusal to
stop the proceedings is that AMS must continue to partic-
ipate in the reexaminations to preserve its interests.
Alone, however, an agency’s imposition of the burden of
participating in administrative proceedings is not enough
to render that action final. Standard Oil, 449 U.S. at 242;
see Van Cauwenberghe, 486 U.S. at 524 (similar point for
finality rule applicable to district-court litigation).
     If AMS receives an adverse ruling from the PTO in
any of the reexaminations, AMS will at that time have an
“adequate remedy in a court.” 5 U.S.C. § 704. Under the
APA, the “intermediate” agency action of refusing to stop
the reexaminations, not elsewhere declared to be unre-
viewable, “is subject to review on the review of the final
agency action.” Id. The PTO has conceded that, under 35
U.S.C. § 315(a)(1) (2006), “AMS can appeal any adverse
[final determination of patentability]” to this court for
“consider[ation of] whether the reexamination proceed-
ings should have been terminated under § 317(b).” Appel-
lee’s Brief at 20.
    Accordingly, there is clearly no final agency action
here. And that conclusion is not altered by the fact that,
in Cooper Techs. Co. v. Dudas, 536 F.3d 1330 (Fed. Cir.
10                        AUTOMATED MERCHANDISING      v. LEE

2008), we affirmed, on the merits, a district court’s grant
of summary judgment to the PTO regarding the agency’s
refusal to terminate ongoing reexamination proceedings.
Id. at 1332. Cooper did not discuss the APA’s final-
agency-action requirement, so it is not precedential on the
issue, even if the requirement is jurisdictional. See, e.g.,
Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170
(2004) (“Questions which merely lurk in the record, nei-
ther brought to the attention of the court nor ruled upon,
are not to be considered as having been so decided as to
constitute precedents.”) (internal quotation marks and
citation omitted); Lewis v. Casey, 518 U.S. 343, 352 n.2
(1996) (“[T]he existence of unaddressed jurisdictional
defects has no precedential effect.”); United States v. Cnty.
of Cook, Ill., 170 F.3d 1084, 1088 (Fed. Cir. 1999) (no
precedential effect of decisions on issues not squarely
addressed); cf. Arbaugh v. Y&H Corp., 546 U.S. 500, 511
(2006) (“ ‘drive-by jurisdictional rulings,’ ” in which legal
rules are labeled “jurisdictional” through “unrefined
dispositions,” have no precedential effect).
    AMS therefore cannot proceed under the APA. And
mandamus and the Declaratory Judgment Act, the other
statutory avenues of relief that AMS invoked in its com-
plaint, are also foreclosed.
    Mandamus relief under 28 U.S.C. §§ 1361, 1651 is
unavailable. AMS can present its § 317(b) argument on
appeal from any final adverse PTO determination in the
reexaminations and, if correct about § 317(b), can secure
reversal of such a determination. Because AMS has an
adequate remedy and its only present harm is the burden
of participating in the proceedings at issue, it is not
entitled to mandamus relief. See Mallard v. U.S. Dist.
Court for the S. Dist. of Iowa, 490 U.S. 296, 309 (1989);
Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383
(1953).
AUTOMATED MERCHANDISING     v. LEE                        11

    Relief under the Declaratory Judgment Act, 28 U.S.C.
§ 2201, is also unavailable. AMS has not relied on that
Act in its arguments to us, and for good reason. The Act
provides a “discretionary” remedy that “courts traditional-
ly have been reluctant to apply . . . to administrative
determinations” that are not final or otherwise ripe for
review. Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)
(courts should use discretion “to protect the agencies from
judicial interference until an administrative decision has
been formalized and its effects felt in a concrete way”),
overruled on other grounds by Califano v. Sanders, 430
U.S. 99, 105 (1977); see Lane v. U.S. Dep’t of Agric., 187
F.3d 793, 795–96 (8th Cir. 1999) (declaratory-judgment
action not ripe for lack of final agency action). “A declara-
tory judgment action should not be used to circumvent the
usual progression of administrative determination and
judicial review.” Agri-Trans Corp. v. Gladders Barge
Line, Inc., 721 F.2d 1005, 1011 (5th Cir. 1983). A contra-
ry conclusion here would impermissibly employ the gen-
eral, discretionary declaratory-judgment remedy to
override the specific requirements of the APA addressing
review of agency action. See, e.g., Corley v. United States,
556 U.S. 303, 316 (2009) (“[A] more specific statute will be
given precedence over a more general one.”) (internal
quotation marks and citation omitted).
    Because the PTO’s refusal to terminate the proceed-
ings at issue was not a final agency action, the district
court did not err in granting summary judgment in favor
of the PTO.
                       CONCLUSION
    For the foregoing reasons, the judgment of the district
court is affirmed.
                       AFFIRMED