Frank Dufour, an individual v. Robert Allen, an individual;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK DUFOUR, an individual,
Plaintiff-Appellant,
v.
ROBERT ALLEN, an individual; et al.,
Defendants-Appellees.
No. 14-56980
D.C. No.
2:14-cv-05616-CAS-SS
MEMORANDUM *
FRANK DUFOUR, an individual,
Plaintiff-Appellee,
v.
ENLIGHTENED WEALTH INSTITUTE
INTERNATIONAL L.C., a Utah
corporation and ENLIGHTENED
WEALTH INSTITUTE, L.C., a Utah
corporation,
Defendants-Appellants.
No. 14-57009
D.C. No.
2:14-cv-05616-CAS-SS
FRANK DUFOUR, an individual,
Plaintiff-Appellant,
No. 15-55193
D.C. No.
2:14-cv-05616-CAS-SS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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v.
ROBERT ALLEN, in individual,
Defendant,
and
NATIONAL ACCEPTANCE
CORPORATION; et al.,
Defendants-Appellees.
FRANK DUFOUR, an individual,
Plaintiff-Appellee,
v.
ROBERT ALLEN, in individual,
Defendant,
and
NATIONAL ACCEPTANCE
CORPORATION; et al.,
Defendants-Appellants.
No. 15-55210
D.C. No.
2:14-cv-05616-CAS-SS
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted February 7, 2017
Pasadena, California

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Before: THOMAS, Chief Judge, NGUYEN, Circuit Judge, and AMON,** District
Judge.
Frank Dufour appeals the district court’s grant of summary judgment in
favor of Defendants on the ground that the statute of limitations had run on his
fraud claims. Dufour also challenges the district court’s ruling relating to a
settlement offer that he tried to accept in 2013, its dismissal of his cross-cross-
claim, and its denial of a continuance on a summary judgment motion to permit
him to conduct discovery. Defendants cross-appeal the court’s denial of their
motion for sanctions against Dufour and his counsel, Andrew Kulick. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.1
1. The district court correctly granted summary judgment in favor of
Defendants on Dufour’s fraud claims. Dufour knew the facts supporting his claims
at least by May 2008, when he retained an attorney to write complaint letters to
one of the current Defendants and to two government bodies. Yet he did not file
this lawsuit until February 8, 2012, more than three years later. See Cal. Civ. Proc.
** The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
1 The parties’ motions for judicial notice concerning documents from related
court proceedings are GRANTED. No. 14-56980, Dkt. Nos. 15, 24, 28, 31. We
may take notice of proceedings in both state and federal court if those proceedings
have a direct relation to matters at issue. Bennett v. Medtronic, Inc., 285 F.3d 801,
803 n.2 (9th Cir. 2002).

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Code § 338(d) (stating that fraud claims are subject to a three-year statute of
limitations). Dufour argues that because he is still paying on the mortgages for the
properties that Defendants fraudulently induced him to purchase, the statute of
limitations is extended as long as those payments continue. The cases that he cites,
however, do not support his “last overt act” theory because, while Dufour does
allege that Defendants conspired to induce him to overpay for the properties, he
does not allege that there was any fraud in the financing of those properties. See
Wyatt v. Union Mortg. Co., 598 P.2d 45, 53 (Cal. 1979) (stating that each
additional mortgage payment was another overt act delaying the statute of
limitations when a conspiracy trapped consumers in usurious loans); see also
People v. Beaumont Inv., Ltd., 3 Cal. Rptr. 3d 429, 457 (Ct. App. 2003) (holding
that each illegal lease payment was an overt act when mobile home park owners
had conspired to violate a city ordinance on rent control). Dufour’s mortgage
obligations are therefore not additional overt acts during the course of the
conspiracy such that they extend the statute of limitations.
2. Dufour next argues that he accepted a valid settlement offer from two of
the Defendants, Enlightened Wealth Institute International, L.C. and Enlightened
Wealth Institute, L.C., and the district court was wrong to conclude otherwise.
California law is clear, however, that “any new offer communicated prior to a valid
acceptance of a previous offer extinguished and replaced the prior one.” Wilson v.

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Wal-Mart Stores, Inc., 85 Cal. Rptr. 2d 4, 8 (Ct. App. 1999). That is exactly what
happened here. Before Dufour tried to accept the settlement offer, the offering
Defendants objectively manifested the intent to change the offer to include an
additional party. As a result, the first offer was extinguished as a matter of law.
And even assuming that the first offer had not been extinguished, Defendants
chose to revoke it, which they were entitled to do. See T. M. Cobb Co. v. Superior
Court, 682 P.2d 338, 343 (Cal. 1984) (holding that California Code of Civil
Procedure § 998 offers are revocable until acceptance).
3. A week after the district court granted summary judgment, Dufour filed
a cross-complaint to Defendants’ cross-complaint. Dufour argues that the district
court’s dismissal of his cross-cross-claim was error. A cross-claim—and thus a
cross-cross-claim—is as a matter of law a separate, simultaneous action. Bertero
v. Nat’l Gen. Corp., 13 Cal.3d 43, 51 (1974). Dufour’s claim concerned the same
harm alleged in his earlier Fourth Amended Complaint and therefore involved the
same “primary right.” See Boeken v. Philip Morris USA, Inc., 230 P.3d 342, 348
(Cal. 2010). The district court was well within its discretion to dismiss it as
duplicative.
4. The district court did not abuse its discretion in denying Dufour’s request
under Federal Rule of Civil Procedure 56(d) to continue the motion for summary
judgment. Dufour not only failed to set forth the specific facts he sought to elicit

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from further discovery, but also declined the district court’s offer of additional time
to comply with Rule 56(d). See Family Home & Fin. Ctr., Inc. v. Fed. Home Loan
Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008). He had also failed to diligently
pursue discovery in the months prior to making the request. See Chance v. Pac-Tel
Teletrac Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 2001).
5. Finally, the district court did not abuse its discretion in failing to impose
sanctions on Dufour and Kulick. Although we reject Dufour’s argument to extend
the statute of limitations, it was not so obviously meritless so as to demonstrate an
improper purpose. See Fed. R. Civ. P. 11(b)(1).
AFFIRMED.

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