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. 12/04/2024 Hearing on Motion to Enforce Settlement Agreement 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 is UNOPPOSED and ruled upon as follows.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact Defendant and advise of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact Defendant prior to hearing, moving counsel is ordered to appear at the hearing by Zoom or in person.

Plaintiffs filed this partition action against 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 pursuant to which the Property would be sold by a licensed realtor selected by Plaintiffs’ counsel, Defendant would pay Plaintiffs’ initial litigation costs in the amount of $7,500 out of his share of the sale proceeds, all other costs, taxes, fees, and other expenses would be split evenly, and Plaintiffs would dismiss this action within 10 days of completion of the sale and distribution of the sale proceeds. (See Stroup Decl., Exh. A. §§ 3(a)-(e).) The agreement specified that time was of the essence, that all parties would cooperate to affect all provisions of the agreement, and that the agreement would be enforceable pursuant to Code of Civil Procedure section 664.6. (Id. at §§ 4(e), (k), (l) and (m).)

Defendant currently resides at the Property. The settlement agreement does not specify when the Property is to be sold or when or whether Defendant must vacate the Property. Instead, Plaintiffs’ counsel declares that Defendant was required to vacate the Property by August 10, 2024 to allow the realtor to prepare the Property for sale. (Stroup Decl., ¶ 15.) Despite Defendant’s apparent acknowledgement that he was to move out by August 10, when Plaintiffs arrived at the Property on that date, Defendant’s belongings remained at the Property, and he “had made no efforts to vacate.” (Id. at ¶ 18.) Defendant was not present at the time and has since not responded to Plaintiffs’ attempts to communicate with him. (Id. at ¶ 19.)

Code of Civil Procedure section 664.6 provides:

If parties to pending litigation stipulate, in a writing signed by the parties outside of the

24CV001530: BARBARA J NAKATOMI AS A TRUSTEE OF THE MIYAMOTO/NAKATOMI FAMILY TRUST DATED DECEMBER 27, 1994, et al. vs NAKATOMI, et al. 12/04/2024 Hearing on Motion to Enforce Settlement Agreement in Department 54

presence of the court or orally before the court, for settlement of the case, or part thereof, 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.

“Section 664.6 permits the trial court to enter judgment on a settlement agreement without the need for a new lawsuit.” (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.) “Although a judge hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment [citations], nothing in section 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.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810, emphasis in original.) In other words, section 664.6 permits a trial court to enter judgment “‘pursuant to the terms of the settlement’ (§ 664.6), and nothing more.” (Machado v. Myers (2019) 39 Cal.App.5th 779, 792.)

Here, Plaintiffs are asking the Court to order Defendant to vacate the Property so it can be sold. (See Proposed Order.) This is not part of the settlement agreement and thus cannot be ordered under Code of Civil Procedure section 664.6. Nothing in the agreement mentions anything about Defendant vacating the Property at all, let alone by August 10, 2024, just 10 days after the agreement was executed. Indeed, it is not even apparent from the agreement that Defendant resides at the Property. This information has only been provided by Plaintiffs’ counsel with this motion, as has the August 10, 2024 deadline to vacate the Property. Since the settlement agreement does not contain terms specifying when or whether Defendant must vacate the Property, the Court cannot enter a judgment pursuant to section 664.6 that includes such terms.

Accordingly, Plaintiffs’ motion to enforce the settlement agreement is DENIED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)

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

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. 12/04/2024 Hearing on Motion to Enforce Settlement Agreement in Department 54

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.

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.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

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.