FILED
NOT FOR PUBLICATION
MAY 01 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERICKSON PRODUCTIONS, INC.; JIM No. 17-17157
ERICKSON,
D.C. No. 5:13-cv-05472-HRL
Plaintiffs-Appellees,
v. MEMORANDUM*
KRAIG RUDINGER KAST,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Howard R. Lloyd, Magistrate Judge, Presiding
Submitted March 25, 2019**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Following a jury trial, the district court entered judgment against Kraig Kast
(“Kast”) in favor of Jim Erickson and Erickson Productions, Inc. (collectively,
“Erickson”), on Erickson’s copyright claims. We resolved Kast’s appeal of that
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judgment in a published opinion. See Erickson Prods., Inc. v. Kast, — F.3d —, 2019
WL 1605668 (9th Cir. Apr. 16, 2019). We now address Kast’s appeal of the district
court’s order adding several judgment debtors to the judgment, including “Kraig Kast
as Trustee of the Black Oak Trust (a/k/a Kraig Kast, Trustee of The Black Oak Trust,
dated March 11, 1995).” We have jurisdiction under 28 U.S.C. § 1291 and affirm.1
Kast challenges the district court’s jurisdiction to amend the judgment while it
was on appeal, and further asserts that the district court lacked jurisdiction over some
of the parties it added to the judgment. While “an appeal to the circuit court deprives
a district court of jurisdiction as to any matters involved in the appeal,” Hoffman v.
Beer Drivers & Salesmen’s Local Union No. 888, 536 F.2d 1268, 1276 (9th Cir.
1976), the district court retains authority to “exercise ancillary jurisdiction . . . to
manage its proceedings, vindicate its authority, and effectuate its decrees,” Peacock
v. Thomas, 516 U.S. 349, 354 (1996) (citation and quotation marks omitted). Thus,
the district court had jurisdiction to amend the judgment to facilitate its enforcement
against Kast, but could not add parties “not already liable for that judgment.” Id. at
357.
The district court concluded that adding Kast in his capacity as trustee of the
Black Oak Trust would not hold a new party liable for the copyright judgment. Two
1
All pending motions are denied as moot.
2
premises supported this conclusion. First, the Black Oak Trust was a revocable trust.
Second, Kast was the trustee of the Black Oak Trust. Thus, the trust property was
subject to Kast’s personal liability. See CAL. PROBATE CODE § 18200; Zanelli v.
McGrath, 82 Cal. Rptr. 3d 835, 850 (Cal. Ct. App. 2008) (“Property transferred to, or
held in, a revocable inter vivos trust is nonetheless deemed the property of the settlor
and is reachable by the creditors of the settlor.”). We affirm on both points.
The district court did not err in concluding the Black Oak Trust entity
containing Kast’s rental properties was revocable. Erickson presented trust
documents, deeds, and communications indicating Kast formed multiple Black Oak
Trust entities to confuse creditors, but actually transferred his rental properties into a
revocable trust. Kast’s explanation that his attorney told him to utilize this unusual
trust structure, and that clerical errors by his title company accounted for the relevant
deeds’ description of the Black Oak Trust as a “revocable” rather than “irrevocable”
trust, is not persuasive.
Nor did the district court err in concluding that Kast is the trustee of the Black
Oak Trust. As the district court acknowledged, Kast presented a notarized resignation
from his position as trustee of the Black Oak Trust, dated December 31, 2015.
However, based on evidence of Kast’s communications with his financial advisor, the
district court reasonably concluded that Kast continued to hold himself out as trustee
3
and exercise control over the trust assets after that date. An individual “who is not a
trustee, but has ‘undertaken to act in the capacity of a trustee’ . . . may be held liable
as a trustee under certain circumstances.” Gaynor v. Bulen, 228 Cal. Rptr. 3d 243,
249 n.4 (Cal. Ct. App. 2018) (quoting King v. Johnston, 101 Cal. Rptr. 3d 269, 283
(Cal. Ct. App. 2009)); see also In re Allustiarte, 786 F.2d 910, 914 (9th Cir. 1986) (“A
person who voluntarily acts as if he or she is a trustee is a de facto trustee.”); cf.
Solomon v. N. Am. Life and Cas. Ins. Co., 151 F.3d 1132, 1138 (9th Cir. 1998) (party
that “did not create, operate or control the trust,” or “perform any duties as trustee,”
was not a de facto trustee). On these facts, we affirm the district court’s conclusion
that Kast’s behavior after his alleged resignation rendered him a de facto trustee of the
Black Oak Trust for purposes of judgment enforcement.
Thus, the district court’s addition of judgment debtors was supported by proper
jurisdiction and complied with California trust law.
We also affirm the district court’s conclusion that Erickson’s motion to amend
the judgment was timely. In light of the lengthy investigation Erickson engaged in to
learn about Kast’s assets, the motion to amend was brought within a reasonable time.
See In re Levander, 180 F.3d 1114, 1121 n.10 (9th Cir. 1999).
Finally, we affirm the district court’s denial of Kast’s motion to quash
Erickson’s improperly-captioned subpoenas. Erickson was entitled to broad post-
4
judgment discovery regarding Kast’s finances, including his assets held in trust. See
Fed. R. Civ. P. 69. We are not persuaded the subpoenas were harmful to Kast, let
alone fraudulent on Erickson’s part.
AFFIRMED.
5