Filed 5/1/20 Kante v. Ali CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

BOSCO KANTE,

Plaintiff and Appellant,

v.

ADEL ALI,

Defendant and Respondent.

A158863

(Alameda County

Super. Ct. No. RG 14752422)

MEMORANDUM OPINION

In this unlawful detainer action, Bosco Kante appeals, in propria persona, after the trial court denied his motion to amend a judgment entered pursuant to a settlement agreement. We affirm.

BACKGROUND

A.

In January 2014, Adel Ali subleased an Oakland house from Kante. The house was owned by Rosemary Greene. About 10 months later, Ali learned the house was in foreclosure and stopped paying rent.

Kante filed an unlawful detainer action seeking possession, unpaid rent, interest, and attorney’s fees. On the day of trial, Kante, Ali, and their respective counsel signed a settlement agreement and stipulated judgment (Judgment). The Judgment, which was approved and entered by the trial court in March 2015, included a release of Kante’s claims and provided Ali would, in the following month, both vacate the premises and pay Kante $12,500.

The Judgment also provided, in paragraph 6b.: “That if the $12,500 is timely paid, the remaining balance with interest at the legal rate of 10% shall be paid by an assignment and lien on [Ali’s] share of any proceeds recovered by [Ali] from any and all claims against Mid-Century Insurance [(Mid-Century)], State Farm Insurance, Kevin Dawson or any other entity or person concerning [Ali’s] claims concerning or related to his house . . . .” On the other hand, if Ali failed to timely pay $12,500, “judgment shall enter for the full sum of [$26,709.41].” The parties further agreed the trial court could retain jurisdiction to enforce the Judgment. (See Code Civ. Proc., § 664.6.)

B.

In the years that followed, Kante filed two motions, in propria persona, to enforce the settlement agreement. He claimed judgment should be entered for the full $26,709.41 because Ali had not timely paid $12,500. The first motion was denied because there was no evidence supporting Kante’s claim that Ali failed to pay on time. Kante’s later motion was denied as an improper motion for reconsideration (§ 1008).

In May 2019, after litigation between Ali and Mid-Century resulted in a judgment in Mid-Century’s favor, Kante filed a motion to amend or vacate the judgment. Kante claimed his agreement to paragraph 6b. of the Judgment was procured by fraud or under economic duress—due to the then pending foreclosure proceedings. Kante asked the court to amend the judgment, to effectively remove paragraph 6b., and enter a new judgment in his favor for $14,209.41 in back rent and other damages. The trial court denied the motion as an untimely and improper motion for reconsideration (§ 1008) and because the court lacked authority to reform a settlement agreement (§ 664.6).

DISCUSSION

Kante argues the trial court abused its discretion in denying his motion to amend because he only agreed to paragraph 6b. under duress. However, Kante has failed to meet his burden on appeal because he wholly fails to address the trial court’s reasons for denying his motion.

We must presume a trial court order or judgment is correct, and the appellant bears the burden of affirmatively demonstrating error. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) Kante is not exempt from these rules because he acts in propria persona. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) “[I]t is not a reviewing court’s role to construct theories or arguments which would undermine the judgment.” (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 564.) Kante has failed to meet his burden on appeal and we must affirm.

DISPOSITION

The post judgment order dated July 17, 2019 is affirmed. Ali shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(a)(2).)

 

_______________________

BURNS, J.

We concur:

____________________________

JONES, P.J.

____________________________

SIMONS, J.

A158863