NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GROUSE RIVER OUTFITTERS, LTD., 

Plaintiff-Appellant, 

 v. 

ORACLE CORPORATION, 

Defendant-Appellee, 

and 

NETSUITE, INC., 

Defendant, 

 v. 

EMILY HOLTON, 

Movant.

No. 19-16602 

D.C. No. 3:16-cv-02954-LB 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Laurel D. Beeler, Magistrate Judge, Presiding

Argued and Submitted December 8, 2020

San Francisco, California

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

FEB 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: BOGGS,** M. SMITH, and BENNETT, Circuit Judges.

Grouse River Outfitters, Ltd. (“Grouse River”) appeals various decisions of 

the district court. Because the parties are familiar with the facts, we do not recount 

them here, except as necessary to provide context to our ruling on the specific 

issues addressed herein. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 

1294(1), and we reverse in part, affirm in part, vacate the judgment and attorneys’ 

fees award in Oracle Corporation’s (“Oracle”) favor, and remand to the district 

court for proceedings consistent with this disposition.

Grouse River’s § 496 Claim

The district court granted Oracle’s Federal Rule of Civil Procedure (“Rule”) 

12(b)(6) motion to dismiss Grouse River’s claim for receiving stolen property 

under California Penal Code § 496. “We review de novo a district court’s 

dismissal under Rule 12(b)(6).” Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 

(9th Cir. 2019). We must “accept all factual allegations in the complaint as true 

and construe the pleadings in the light most favorable to” Grouse River. Id.

(citation and quotation marks omitted). 

** The Honorable Danny J. Boggs, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
3 

Grouse River’s First Amended Complaint (“FAC”) alleged that NetSuite1

“by false or fraudulent representation or pretense, defrauded Grouse River of the 

money and funds it paid to NetSuite and thereby fraudulently got or obtained 

possession of money from Grouse River,” and, as a result, Grouse River was 

injured pursuant to California Penal Code § 496. California Penal Code § 496(a) 

provides, in relevant part, that: 

Every person who buys or receives any property that has 

been stolen or that has been obtained in any manner 

constituting theft . . . , knowing the property to be so stolen 

or obtained . . . shall be punished by imprisonment in a 

county jail for not more than one year, or imprisonment 

pursuant to subdivision (h) of Section 1170. 

Section 496(c) states that “[a]ny person who has been injured by a violation of 

subdivision (a) . . . may bring an action for three times the amount of actual 

damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s 

fees.” Cal. Penal Code § 496(c).

California courts have held that “[s]ection 496(a) extends to property ‘that 

has been obtained in any manner constituting theft.’” Bell v. Feibush, 151 Cal. 

Rptr. 3d 546, 551 (Ct. App. 2013). California Penal Code section 484 defines theft 

and states that “[e]very person . . . who shall knowingly and designedly, by any 

1 NetSuite was purchased by Oracle Corp. in November 2016, and Oracle was 

substituted in NetSuite’s place as the defendant in this lawsuit. 
4 

false or fraudulent representation or pretense, defraud any other person of money, 

labor or real or personal property, . . . is guilty of theft.” Cal. Penal Code § 484(a). 

“[T]he elements required to show a violation of section 496(a) are simply 

that (i) property was stolen or obtained in a manner constituting theft, (ii) the 

defendant knew the property was so stolen or obtained, and (iii) the defendant 

received or had possession of the stolen property.” Switzer v. Wood, 247 Cal. Rptr. 

3d 114, 121 (Ct. App. 2019).2 Here, because the district court held that Grouse 

River had adequately pleaded its fraud claims, it follows that Grouse River 

adequately pleaded theft by false pretense (which satisfies the first element of a 

§ 496 violation) because the elements of a civil fraud claim closely track those of 

theft by false pretense. Compare ER3 177–78 with Judicial Council of California 

Criminal Jury Instructions 2020 (“CALCRIM”), No. 1804. In addition, because 

theft by false pretense is a specific-intent crime and requires that the perpetrator 

have acted “knowingly and designedly,” see Cal. Penal Code § 532(a), Grouse 

River also adequately pleaded the second element required to show a violation of 

2 Siry Investment, L.P. v. Farkhondehpour, 259 Cal. Rptr. 3d 466 (Ct. App. 2020), 

which interpreted § 496 as not authorizing a treble-damages award “whenever a 

plaintiff proves (or . . . sufficiently alleges) any type of theft—whether it be fraud, 

[or] misrepresentation,” id. at 494–95, has no binding or precedential effect 

because the opinion is pending review before the California Supreme Court. See

Cal. Rules of Court 8.1115(e); Siry Inv. v. Farkhondehpour, 468 P.3d 701 (Cal. 

2020).

3 Excerpt of Record.
5 

§ 496, see Switzer, 247 Cal. Rptr. 3d at 121. Finally, because it is not disputed that 

Grouse River paid Oracle for the software, the third required element is also met.

4

We also hold that the error is not harmless. Oracle does not show that 

waiver is a defense to a § 496 claim under California law, and because there was 

no special verdict form on waiver, we cannot determine whether the jury’s verdict 

in favor of Oracle resulted from a finding that Grouse River did not prove fraud, or 

instead that Grouse River waived its right to recovery.5

Oracle’s Rule 12(c) Motion

A Rule 12(c) motion is “functionally identical” to a Rule 12(b) motion,

Dworkin v. Hustler Mag. Inc., 867 F.2d 1188, 1192 (9th Cir. 1989), and we review 

the district court’s ruling de novo. Curtis, 913 F.3d at 1151. A Rule 12(b)(6) 

4

In reasoning that “dual liability” barred Grouse River’s claim, the district court 

misconstrued California law. Dual liability in the civil context bars § 496(a)

liability for both breach of contract and fraud arising out of the same conduct. See 

Bell, 151 Cal. Rptr. 3d at 552. This principle is not implicated here, both because 

Grouse River was not given the opportunity to elect between a contract remedy and 

a § 496(a) remedy, and because Grouse River later voluntarily withdrew its 

contract claims. The district court further erred by holding that Bell required

“additional conduct” beyond the statutory requirements—requiring an allegation 

that Grouse River demanded return of the funds Oracle allegedly received by 

means of false pretenses and that Oracle refused the demand. Bell, however,

makes clear that the withholding of funds after demand is an alternative basis for

liability, not an additional requirement for liability. Id.

5 Grouse River requested a special verdict form on waiver, and Oracle opposed this 

request. As the district court specifically stated when rejecting Grouse River’s 

request for a special-verdict form, the jury “just won’t return a verdict on the fraud 

allegations” if they find waiver. 
6 

motion does not preclude a subsequent Rule 12(c) motion. See In re Apple iPhone 

Antitrust Litig., 846 F.3d 313, 318 (9th Cir. 2017).

“Whether a statement is puffery or a representation of fact is a question of 

law,” Yetter v. Ford Motor Co., 428 F. Supp. 3d 210, 234 (N.D. Cal. 2019), and we 

review de novo the district court’s characterization of Grouse River’s 

representations as “puffery.” In re Quality Sys., Inc. Sec. Litig., 865 F.3d 1130, 

1140 (9th Cir. 2017). Statements that are “generalized, vague,” or that contain 

“unspecific assertions” constitute puffery. Glen Holly Ent., Inc. v. Tektronix Inc., 

343 F.3d 1000, 1015 (9th Cir. 2003).

The district court here erred in striking as “puffery” paragraphs 31 and 69 of 

the Second Amended Complaint (“SAC”).

6 The district court struck both because 

it determined, as a matter of law, that they were “too general to be actionable 

fraud.” Paragraph 31 claims that Oracle represented: “Speed of deployment in 

months not years.” It was error to strike this representation. First, it is not 

necessarily too “generalized” or “vague” a statement to be actionable. See id. A 

deployment in less than twelve months meets the representation, and a deployment 

that takes longer (or materially longer) does not. Given the importance that Grouse 

River claims it placed on the speed with which the new software was to be 

6 Following Oracle’s first Rule 12(b)(6) motion to dismiss the FAC, Grouse River 

was given leave to amend its complaint and thereafter filed the SAC.
7 

implemented, adapted, and deployed, such a representation could be material. 

Therefore, viewing this allegation in the light most favorable to Grouse River, 

Oracle’s knowledge that this representation as to speed of deployment was false, 

could support a fraud allegation.

Paragraph 69 of the SAC reads: “The [November 26, 2013] NetSuite 

presentation [to Grouse River] went on to show that the software only requires a 

subscription and eliminates the need to back-up, upgrade, migrate, tune, or replace 

software.” These statements are not too general to be actionable. A statement can 

be both broad and sweeping, and yet specific, not general. The statement, made 

during a demonstration intended to induce Grouse River to buy, was that if Grouse 

River purchased a NetSuite subscription, there was no need to back-up, upgrade, 

migrate, tune, or replace software. Sweeping yes, but also specific. Evidence that 

Grouse River did indeed need to back up, upgrade, or replace the software could 

prove the alleged representation false. 

Because we have no way of knowing whether Grouse River would have 

been successful in convincing a jury that Oracle acted fraudulently with regard to 

these two representations, we cannot determine that any error was harmless, and 

we instruct the district court to permit these representations to go to the jury in a 

new trial, absent a challenge by Oracle on other grounds not considered that the 

district court deems proper. Similarly, because it is impossible for us to determine
8 

the impact the incorrect exclusions had as to the representations that were 

permitted to go forward, the district court must also permit the representations it 

previously deemed actionable to go to the jury in the new trial.

Exclusion of Damages Pursuant to Rule 26(a)(1)(A)(iii)

We review the district court’s grant of Oracle’s tenth motion in limine for 

abuse of discretion, see United States v. Ravel, 930 F.2d 721, 726 (9th Cir. 1991), 

even when the grounds for the grant amount to a discovery sanction, see Yeti by 

Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105 (9th Cir. 2001). We 

find no abuse of discretion here. 

District courts have broad discretion “to fashion an appropriate sanction for 

conduct which abuses the judicial process,” Chambers v. NASCO, Inc., 501 U.S. 

32, 44–45 (1991), and courts have permitted parties to raise motions in limine

pursuant to Rule 37, see, e.g., Vasquez v. City of Idaho Falls, 2020 WL 687499, at 

*2 (D. Idaho Feb. 11, 2020). Oracle’s motion was timely given that Grouse River 

sought to use the disclosed spreadsheet only after the district court struck its lostprofits expert. 

The district court also did not abuse its discretion in determining that Grouse 

River did not adequately disclose several of the damage calculations in the 

spreadsheet. Rule 26(a)(1)(A)(iii) contemplates damages computation analysis and

explanation. City & Cnty. of San Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 
9 

221 (N.D. Cal. 2003); see also Bastidas v. Good Samaritan Hosp. LP, 2017 WL 

1345604, at *7 (N.D. Cal. Apr. 12, 2017). Here, both were lacking, and the district 

court did not abuse its discretion in so holding.

Mitigation of Damages and Consequential and Incidental Damages

We need not decide if the district court erred in instructing the jury on 

mitigation of damages and in failing to instruct on consequential and incidental 

damages. The jury never reached the question of damages, so any errors were

necessarily harmless. See Kennedy v. S. Cal. Edison Co., 268 F.3d 763, 770–71 

(9th Cir. 2001).

Jury Instructions on Waiver

Grouse River claims the waiver instruction was unsupported by the 

evidence. We would ordinarily review this issue for abuse of discretion. White v. 

Ford Motor Co., 312 F.3d 998, 1012 (9th Cir. 2002). But Grouse River did not 

explicitly argue insufficiency to the district court and instead asked the court for a 

special verdict on waiver. Grouse River’s sufficiency claim is therefore forfeited

and may only be noticed if the error is plain. See Crowley v. Epicept Corp., 883 

F.3d 739, 748 (9th Cir. 2018). Any alleged error here was not plain, including 

because it did not “seriously impair[] the fairness, integrity or public reputation” of 

the proceeding. See C.B. v. City of Sonora, 769 F.3d 1005, 1019 (9th Cir. 2014) 

(citation omitted). 
10 

Attorneys’ Fees

Because we reverse, Oracle is no longer the prevailing party and the district 

court’s grant of attorneys’ fees in Oracle’s favor is vacated as moot.7 Nevertheless, 

we write briefly on this issue.

First, our review of the record indicates that Grouse River was not provided 

the opportunity to review unredacted or partially redacted time entries that Oracle 

submitted to support its attorneys’ fees claim, even though the district court had 

previously concluded that Oracle had failed to show “good cause” why its 

documentation supporting its fee request should be sealed. This was prejudicial to 

Grouse River, particularly because Oracle’s fee request was granted in full. To the 

extent attorneys’ fees are sought at the conclusion of the new trial, the opposing 

party must be given a fair opportunity to object to the fee award sought, including 

by ensuring that it receive unredacted or partially redacted time entries.

Second, it was improper for the district court to grant in full an attorneys’ 

fees request that was based largely on block billing where there was significant 

overlap in time billed for the same work between attorneys and it was difficult to 

ascertain how much time was spent on specific tasks. We have recognized that 

7 Under California law, “the side that receives the net monetary recovery is the 

prevailing party” for attorneys’ fees purposes. Biren v. Equality Emergency Med. 

Grp., Inc., 125 Cal. Rptr. 2d 325, 334 (Ct. App. 2002) (citation and quotation 

marks omitted).
11 

attorneys’ fees awards can be reduced where a party block bills “because block 

billing makes it more difficult to determine how much time was spent on particular 

activities.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007). 

Should the question of attorneys’ fees come before the district court again, we urge 

the court to carefully review the submitted records and ensure that it is able to 

appropriately assess reasonableness.

Each party shall bear its own costs on appeal.

REVERSED in part; AFFIRMED in part; VACATED; and REMANDED.