                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 09 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



In the Matter of: DAVID HERSCHEL                 No. 08-56655
LUND,
                                                 D.C. No. 2:06-cv-08127-GAF
             Debtor,

                                                 MEMORANDUM *

DAVID HERSCHEL LUND,

             Appellant,

  v.

JACK JEVNE,

             Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                          Submitted December 7, 2009 **
                              Pasadena, California

Before: HALL, THOMPSON, and SILVERMAN, Circuit Judges.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      David Hershel Lund appeals the district court’s affirmance of (1) the

bankruptcy court’s exclusion of parol evidence offered by Lund; and (2) the

bankruptcy court’s grant of summary judgment to Appellee Jack Jevne on Lund’s

cross-claim for fraud. This court has jurisdiction pursuant to 28 U.S.C. § 158(d),

and we affirm.

      Lund is Jevne’s former financial advisor and admits to stealing $410,000

from funds controlled by Jevne. In 1991, Lund signed an unsecured promissory

note acknowledging the debt and promising to repay $410,000 plus interest. In

2001, Lund signed another written agreement stating that he still owed that amount

and that the statute of limitations did not bar the debt.

      Lund wishes to introduce evidence that Jevne orally promised that he would

not sue on the outstanding debt and would only use the 2001 agreement for

purposes of obtaining a tax deduction. This alleged promise is directly contrary to

Lund’s written waiver of the statute of limitations, which gave Jevne the right to

sue on the outstanding debt. The parol evidence rule bars introduction of prior or

contemporaneous oral representations that contradict integrated terms of a written

agreement. See Enrico Farms, Inc. v. H. J. Heinz Co., 629 F.2d 1304, 1306 (9th

Cir. 1980); Banco Do Brasil, S. A. v. Latian, Inc., 285 Cal. Rptr. 870, 886 (Cal. Ct.

App. 1991) (“[I]t cannot reasonably be presumed that the parties intended to

integrate two directly contradictory terms in the same agreement.”).
      Although the parol evidence rule does not bar introduction of extrinsic

evidence to show fraudulent inducement, this fraud exception does not apply where

an alleged fraudulent promise not to sue is inconsistent with the written terms of

the agreement. Brinderson-Newberg Joint Venture v. Pacific Erectors, Inc., 971

F.2d 272, 281 (9th Cir. 1992); Bank of Am. Ass’n v. Pendergrass, 48 P.2d 659, 661

(Cal. 1935). The district court thus properly affirmed the bankruptcy court’s

exclusion of parol evidence.

      Lund’s fraud cross-claim is premised on the same alleged false promises that

were excluded above under the parol evidence rule. The parol evidence rule is a

rule of substantive law under which the integrated terms of a written agreement

supersede all prior and contemporaneous agreements, making evidence contrary to

those terms irrelevant as a matter of law. See Casa Herrera, Inc. v. Beydoun, 83

P.3d 497, 502 (Cal. 2004) (fraud action properly terminated under the parol

evidence rule). The district court thus properly affirmed the bankruptcy court’s

grant of summary judgment to Jevne on Lund’s cross-claim.

      AFFIRMED.
