thank you very much your honor let me punch my timer so i'll start my own timer ok and with the court's indulgence i'd like to reserve two minutes of my time for rebuttal a try to thank you very much sir may it please the court have read the believes this is a hot hot bench and what i'd like to do is ask you which particular issues would you like me to focus on ninety six dollars claim why isn't that error harmless on the that would be my st question for that i think is a straightforward question and the answer is pretty straightforward as well criminal jury instructions for this abounds and with one exception there's a seems to be a fairly general overlap the only exception and i'll be asking your friend on the other side about this to me the only major exception is as far as i can determine there is no defense of waiver to the criminal charge and obviously you're the jury was instructed on criminal offense of receiving stolen property even if you are the principal as i believe you can be under section four hundred and ninety dollars i'm not sure i understand the question your honor if you repeat all i mean let me ask it again putting waiver aside when you match up the element core ninety six type of or the receiving stolen property as we have here for what the jury was actually instructed on the fraud what do you see in those eight elements that really aren't beef does not dispute that they try and cite cases from other jurisdictions dealing with other issues but nowhere is oracle addressed the fact that in fact the elements are different otherwise why would you have a separate i think i think that question is harmed in the d published opinion the siri court talked about it but we're not here to decide california public policy i would agree with that and if you have any doubt about that as you know the  though i think the short answer to that your honor is because the court basically struck all of our consequential and incidental damages there would be no need for that instruction again that that's really what i was looking for is it realistic that i now i know you disagree with what  spreadsheet in case and that's week not once not twice but four times it is part of the record on appeal if you take a look at the summary tab has a computation of each of the components of grassers damages these are the same components the grocer supplied before the discouraged or expert couldn't testify and wasn't what you were going on your experts damage calculations and then after the district court ruled him out you then said well no let's go back so these are these other spreadsheets and damages which means all the expert was struck wasn't your operative damage calculation dry of the wrong you do have it wrong your are at all times we had maintained that  obviously fine tuning it as it went along and i believe as a matter of law if you take a look at the cases that you have here and there is there there there was no finding will as well the court said that  we should have supplied this earlier well that was in error because we certainly did supply it earlier numerous times nd of all before the court and excluded clearly competent evidence it has  didn't understand the argument in your brief how as it comes to us if this was error our it wasn't harmless the jury obviously didn't get the damages and i believe the essence of your argument was that the jury not having this damage information sort of inspected the whole case but how does that demonstrate that the error was other than harmless if the jury never got asked questions one and two on the verdict form  out how could something that would have only come up after they'd answered questions wanted to and only then answered one or both of them yes would they get the damages how could that be a harmful error because the entire case changed this is a case for fraud and in a fraud case the damages are necessarily part and parcel of your cause of action you have to show that they are late and by throwing out as much as ms ray told the jury this changed the entire nature of the case and under the our in our sales decision by this court as well as the subsequent twenty or the decision is automatically requires reversal and a new trial or the will has not addressed those cases just telling me and  at the other point is that where you have a exclusion of competent evidence if this was the error is presumed prejudicial and oracle has the burden of showing that it was not prejudicial and they  as i understand the counsel you have not pointed to one piece of evidence as the liability that you offered that the district court kept out is that right yes we have as a matter of fact what what what what what have you presented in your briefs as to evidence if you proffer going to liability which just record ruled inadmissible or kept out not goes to the district court ad trial or was kept out in a specific motion in limine what document what testimony did you offer that the district court kept out that went to liability the testimony that mr fall given that not only did the did not sleep destroyed gross river leading up to the signing of the contract but the contract itself was fraudulent because it repeated the same misrepresentation and in fact next we could comply with and supplied all of the metrics and all of the things that gossip or wanted to have in this fancy operating enterprise system and the judge excluded that clearly  is clear that would regard to both the dismissal of for ninety sex and the exclusion of some portion of the damages evidence both of those would have then are less errors were they in error we do not think that they were her but there is no way now with a jury that did not reach damages at all and determined on the evidence that was presented that there was no fraud that those could have waiver by clear and convincing evidence the only way that that could be reflected on the verdict form was by answering questions one and two no is that there's no other place that could have been reflected as a crack true but my question was do you agree that under california law waiver is not a defense to the crimes that are punishable under section four hundred and ninety six i agree that cents from all we know from looking at the verdict form the jury could have rejected the fraud claim based on a waiver and the judge should your or judging didn't give a special verdict so that we could know the answer to that was where was where was the evidence to support waiver that is knowing of the existence of a fraud cause of action that groused river intentionally and knowingly or went that claim by entering into some type of new agreement with oracle what was the evidence that knowing of a claim they waved at by entering into no vacation or a new agreement yes your hon so let's assume for the moment that you're right i'm not sure you are but let's assume you're right that there was evidence which justified the waiver defensed being sent to the jury if your view is that there was evidence of waiver in the record how counsel just stated that he did not rely on that he was not relying on receiving under for ninety six but just the fraud so in this case we didn't even have for ninety six dollars allegation in the based on the allegations in the coup plain there was no opportunity for grounds for her to to fix this problem and that's because again the only alleged in this complaint was fraudulent misrepresentation and in the court of appeals the evidence to establish not only by receiving property from dell by false pretenses by all but also by withholding that property when she asked for it back at the district court viewed both of those things as would because in all of those cases there was action taken with regard to property that had been stolen the plain language of for ninety six requires that the property itself have the characteristic of having been it's money i don't i don't understand how that is not receiving property by false pretenses if you make false or allegedly false or fraudulent representation is to someone  of the property may be connected pursuant to the section was meant to clarify that the could in fact be the person who did something with the stolen property under for ninety six and could be held liable or for that action as well but can in your report stated that when the property comes into the possession of the defendant it must already have the characteristic of having been stolen that's the important point otherwise forty four and forty six would is this defendant the thief must be taking action with regard to stolen property and that the knowing element is really important here your honor because the thief must know that the property stolen at person who is taking the money or property get or obtain possession of it so that doesn't even forty four is not consummated until possession  so there is no stolen property under forty four until possession occurs so as a result for four hundred and ninety six there must be some conduct with regard to the property once it has been stolen stolen and that is the differentiation and again the i mean i'd agree with you that we do not need to get into what the california supreme court is determining about a policy on the legislative history was very clear in all these cases involve us  is simply to clarify that yes that if it's not just the fence it's not just the slot me vendor it's not just the pawn shop it can also be the very eve who violates more ninety six a and in every case that either party has that was not and not to see to claim under for ninety six a now again to go back to the original point i think it's really important to remember here that this is still harmless error even if the court disagrees but with the point if the jury was able to rule in your favor because a waiver how can you say that they spell no flaw or that they fail in anything other than waver as as a matter of logic you may be right that that was what was in their life but we don't know that my correct well i think i think the record is very clear your honor that the jury did not term and there was a waiver in this case it was not something that was the focus of the case at all well how can you say that they didn't lie x when they were never asked in fact i know a brief for or against the brilliance of trial the trial counsel did put it out there you know having done some work myself you never know which one's going to get through to the drawer otherwise you wouldn't do it i understand your honor and in fact you know purchase and those seem pretty specific representation why is the district court correct that that's not actionable so st i'll say that that your question was never one i will say that there was other allegations with regard to upgrades that weren't clued in when to the jury so for instance the jury was was was  other more specific statements about upgrades that were did go to the jury but this one was very however at no point has crossed ever ever a challenge any of the specific decisions of the court made with regard question by my calling yes you're the last part of that into a question that i had and help me here as i understood it you began with something like sixty one allegations of misrepresentation that was pared down by by exclusion to sixteen or seventeen and then old family nine that went to the jury at my roughly correct with that without taking off my shoes i think your count is about right ok my question then is roughly what what was executed that was but obviously better than the ones that went forward obviously you were able to put to the jury that they did you ron they misrepresented all this stuff and you had a number of examples if i wanted to rule in your favor on this point i would want to say the nd amended complaint on march th two thousand and fourteen based on next week's commitments and representations about what it could and would accomplish and on what timetable progress river mr fowler signed off on the next week contract along with contracts for next week's recommended partners in the project deliverables i can look at and if you take a look at trial exhibit number two hundred which is a key document in this case what it basically