BARBARA J NAKATOMI AS A TRUSTEE OF THE MIYAMOTO/NAKATOMI FAMILY TRUST DATED DECEMBER 27, 1994, et al. vs NAKATOMI, et al.

24CV001530: BARBARA J NAKATOMI AS A TRUSTEE OF THE MIYAMOTO/NAKATOMI FAMILY TRUST DATED DECEMBER 27, 1994, et al. vs NAKATOMI, et al. 07/15/2025 Hearing on Motion - Other for Interlocutory Judgment of Partition by Sale Pursuant to CCP Section 664.6 in Department 54

Tentative Ruling

Plaintiffs Barbara J. Nakatomi, Debra T. Nakatomi, Robert Ken Miyamoto, Richard Schlesinger, and Judy Nakatomi’s (collectively, “Plaintiffs”) motion to enforce settlement agreement for an interlocutory judgment of partition by sale pursuant to Code of Civil Procedure section 664.6 (“Section 664.6") is unopposed and is ruled upon as follows.

Plaintiffs filed this partition action against their brother, Defendant Douglas J. Nakatomi (“Defendant”), on January 24, 2024. Plaintiffs allege they co-own the real property at 1227 Noonan Drive, Sacramento, California 95822 (the “Property”) with Defendant. Plaintiffs wished to divest themselves from the Property, but the parties were unable to reach an agreement in which Defendant would purchase Plaintiffs’ interest. Plaintiffs thus filed the present lawsuit.

On July 31, 2024, the parties executed a formal settlement agreement (“Settlement Agreement”) which affirmed that the parties collectively held title to the Property as tenants in common. (Declaration of Gregory Wayland (“Wayland Decl.”), Ex. 1, p. 1.) The Settlement Agreement stated in pertinent part:

3. Consideration.

a. In consideration of this Agreement, the Parties agree that the Subject Property shall be sold by a licensed realtor or real estate broker selected by Plaintiffs’ Counsel.

b. In further consideration of this Agreement, Defendant Douglas Nakatomi agrees to pay from his net proceeds the initial cost of litigation incurred by Plaintiffs for the preparation of the Action filed herein and the recordation of the Notice of Pending Action, in the amount of $7,500.00. The payment will be apportion [sic] in three equal credits to Plaintiffs out of the net escrow proceeds upon the closing of the purchase transaction.

c. In further consideration of this Agreement, all costs of escrow, title fees, recording fees, documentary tax, city conveyance tax, title insurance and other expenses of escrow shall be paid equally by the Parties.

d. In further consideration of this Agreement, the 1⁄2 cost ($1,912.50) of the replacement fence shall be paid out of escrow equally by the Parties. The contribution shall be $478.13 each.

24CV001530: BARBARA J NAKATOMI AS A TRUSTEE OF THE MIYAMOTO/NAKATOMI FAMILY TRUST DATED DECEMBER 27, 1994, et al. vs NAKATOMI, et al. 07/15/2025 Hearing on Motion - Other for Interlocutory Judgment of Partition by Sale Pursuant to CCP Section 664.6 in Department 54

e. In further consideration of this Agreement, the Plaintiffs agree to dismiss the Action with prejudice within 10 days after completion of the sale and distribution of the sale proceeds to all the respective parties.

(Id., Ex. 1, §3.)

The parties also agreed that “[t]ime is of the essence with regard to all matters contained in this Agreement, that “[e]ach Settling Party represents and warrants that they will do all acts and execute and deliver all documents necessary to affect all provisions of this Agreement” and that “[a]ll Settling Parties agree to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Settlement Agreement. (Id., Ex. 1, §§4e, 4k, 4l.) The parties further agreed that the Settlement Agreement would be enforceable pursuant to Code of Civil Procedure section 664.6. (Id., §4m.)

Plaintiffs thereafter retained Chad Phillips (“Phillips”), a licensed realtor, sell the Property. According to Plaintiffs, without any evidentiary support, Defendant was required to vacate the Property by August 10, 2024, as this was the agreed upon date that Phillips would begin cleaning the Property to prepare for the sale. Defendant has not vacated the Property.[1]

Plaintiffs now move for the entry of an interlocutory judgment ordering the Property to be sold, finding that Plaintiffs and Defendant each hold a 25% interest in the Property, and appointing Phillips as referee for the purposes of effectuating the sale of Property. (See Motion, 2:1-2; Proposed Order.)

Plaintiffs contend that the intent of the Settlement Agreement is the partition of the Property by sale, the appointment of a referee and an accounting. They insist that:

An interlocutory judgment in a partition action requires two elements: (1) a determination of the parties’ interests in the property and an order granting the partition. (§872.720, subd. (a), and (2) the manner of partition--i.e., a physical division or sale of the property--is to be decided when or after the parties’ ownership interests are determined, but not before. (Summers v. Superior Court (2018) 24Cal.App.5th 138).

The Settlement Agreement provides each of the following terms: (1) “the Parties agree that the Subject Property shall be sold by a licensed realtor or real estate broker selected by Plaintiffs’ Counsel,” (2) “the Parties collectively hold title to the property as tenants in common”[2] and the Parties agreed to a distribution of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV001530: BARBARA J NAKATOMI AS A TRUSTEE OF THE MIYAMOTO/NAKATOMI FAMILY TRUST DATED DECEMBER 27, 1994, et al. vs NAKATOMI, et al. 07/15/2025 Hearing on Motion - Other for Interlocutory Judgment of Partition by Sale Pursuant to CCP Section 664.6 in Department 54

the net proceeds of sale at Recital No. two, as incorporated by Section 1 and 3(e).

(Motion, 9:23-10:4.)

They advance that the intent to sell the Property is clear as the Settlement Agreement expressly calls for the sale of the Property, and that Code of Civil Procedure section 872.820(a) requires the Court to “order that the property be sold and the proceeds be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment” where “[t]he parties agree to such relief, by their pleadings or otherwise.” Thus, the purpose of the Settlement Agreement was to partition the parties’ interests in the Property.

Plaintiffs lastly maintain that the parties intended to appoint Phillips as a partition referee because “[w]here the Court enters an interlocutory judgment of sale in a partition case, it must appoint a referee to conduct such sale in accordance with the Court’s orders. (Cal. Code of Civil Procedure §873.010(a) [‘The court shall appoint a referee to divide or sell the property as ordered by the court.’]). The Parties have also agreed to the appointment of Chad Phillips in the capacity of Referee subject to the Court’s direction. (Settlement Agreement ¶3(a) [‘a licensed real estate broker selected by Plaintiff’s Counsel.’]).” (Motion, 11:15-20.)

Section 664.6 provides a summary, expedited procedure that enables the Court to enforce a settlement agreement by entering a judgment pursuant to the terms of the settlement. (Sayta v. Chu (2017) 17 Cal.App.5th 960, 962.) It is intended to provide a means for enforcing an agreement that requires nothing more than a single motion. (Machado v. Myers (2019) 39 Cal.App.5th 779, 790.)

Section 664.6 provides:

If parties to pending litigation stipulate[] in a writing signed by the parties outside the presence of the court . . . for settlement of the case, . . . the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.

“When ruling on a [Section] 664.6 motion . . ., the judge must determine whether the parties entered into a valid and binding settlement.” (California Judges Benchbook: Civil Proceedings – Before Trial (Cal CJER April 2025 Update § 5.59 [citing Bowers v. Raymond J. Lucia Cos., Inc. (2012) 206 Cal.App.4th 724, 734.].)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV001530: BARBARA J NAKATOMI AS A TRUSTEE OF THE MIYAMOTO/NAKATOMI FAMILY TRUST DATED DECEMBER 27, 1994, et al. vs NAKATOMI, et al. 07/15/2025 Hearing on Motion - Other for Interlocutory Judgment of Partition by Sale Pursuant to CCP Section 664.6 in Department 54

A settlement agreement is interpreted according to the same principles as any other written agreement [Citation.] It must be interpreted to give effect to the mutual intent of the parties as it existed at the time, insofar as that intent can be ascertained and is lawful. [Citations.] If the language of the agreement is clear and explicit and does not involve an absurdity, determination of the mutual intent of the parties and interpretation of the contract is to be based on the language of the agreement alone. [Citations.]

(Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1374.)

Further, “[w]hile the court may interpret the terms of the parties’ settlement agreement, ‘nothing in [S]ection 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.’ [Citation.]” (Ibid.)

Here, there is no dispute that the parties entered into a valid and binding settlement agreement. The question is whether the parties agreed that Plaintiffs could obtain an interlocutory judgment and to appoint Phillips as the partition referee. Although the Settlement Agreement does not expressly use the terms “interlocutory judgment” or “referee,” in viewing the complaint and the Settlement Agreement as a whole, the Court agrees with Plaintiffs that the mutual intent of the parties was to partition the Property by sale and appoint Phillips as the partition referee.

In settling the partition action, the parties agreed that “the Property shall be sold by a licensed realtor or real estate broker selected by Plaintiffs’ Counsel.” Plaintiffs’ counsel selected Phillips as the licensed realtor to sell the Property, which is the purpose of a partition referee. The parties also agreed that each held title to the Property as tenants in common, and their respective interests in the Property is undisputed.

Accordingly, the Court will GRANT Plaintiffs’ motion to enforce the settlement by entering an interlocutory judgment and appointing Phillips as the Partition referee.

The Court, however, DENIES Plaintiffs’ request that: (1) the Court order Defendant to vacate the Property within 20 days under its broad equitable authority, or issue a Writ pursuant to Code of Civil Procedure section 712.010 after 20 day to aid the referee in the sale, and (2) the Court order further costs incurred due to the motion because Plaintiffs’ notice of motion and motion do not specify these additional forms of relief.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV001530: BARBARA J NAKATOMI AS A TRUSTEE OF THE MIYAMOTO/NAKATOMI FAMILY TRUST DATED DECEMBER 27, 1994, et al. vs NAKATOMI, et al. 07/15/2025 Hearing on Motion - Other for Interlocutory Judgment of Partition by Sale Pursuant to CCP Section 664.6 in Department 54

The Court will sign the proposed interlocutory judgment submitted.

[1] On August 20, 2024, Plaintiffs filed a motion to enforce the settlement agreement asking the Court to order

Defendant to vacate the Property so it can be sold. The Court denied the motion on December 4, 2024 because the settlement agreement did not contain terms specifying when or whether Defendant must vacate the Property. [2] It is undisputed that the Parties own the following interest in the Property:

 25% - Barbara J. Nakatomi, a married woman, as her separate property.  25% - Debra T. Nakatomi, and Robert Ken Miyamoto, trustees of the Miyamoto/Nakatomi Family Trust dated December 27, 1994, as the separate property of Debra T. Nakatomi.  25% - Richard Schlesinger and Judy Nakatomi, trustees of the Richard Schlesinger and Judy Nakatomi Revocable Trust, as the separate property of Judy A. Nakatomi.  25% - Douglas J. Nakatomi, a single man. (Declaration of Barbara J. Nakatomi, Exs. 1-2.)

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-cagov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV001530: BARBARA J NAKATOMI AS A TRUSTEE OF THE MIYAMOTO/NAKATOMI FAMILY TRUST DATED DECEMBER 27, 1994, et al. vs NAKATOMI, et al. 07/15/2025 Hearing on Motion - Other for Interlocutory Judgment of Partition by Sale Pursuant to CCP Section 664.6 in Department 54

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.pdf.

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Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.