Filed 7/26/21 Kristina B. v. Fisher CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

KRISTINA B.,

Plaintiff and Respondent,

v.

NOEL FISHER,

Defendant and Appellant.

 B304878

(Los Angeles County

Super. Ct. No. 

18STCV09736)

APPEAL from an order of the Superior Court of Los 

Angeles County, Dennis J. Landin, Judge. Affirmed.

Noel Fisher, in pro. per., for Defendant and Appellant.

Venable, William J. Briggs II, Matthew M. Gurvitz and

Bryan J. Weintrop for Plaintiff and Respondent.
2

Respondent Kristina B. brought an action against

appellant Noel Fisher, an established music producer and 

songwriter, on December 27, 2018, for assault and battery, sexual 

battery, sexual harassment, gender violence, and infliction of 

emotional distress. These torts were alleged to have occurred 

between January 2017 and May 2018. After attempts at personal 

service were unsuccessful, the court issued an order for service by 

publication on May 10, 2019. Appellant’s default was entered on 

July 24, 2019. The court entered judgment for $15,130,906.74 on 

September 24, 2019.

Appellant, in propria persona, filed a motion to set aside 

the default judgment on October 30, 2019. This motion was 

denied on January 9, 2020, without prejudice, the court noting 

that counsel who had appeared at the hearing for appellant 

intended to file a new motion to set aside the default.

A second motion to set aside the default was filed by 

appellant’s counsel on January 23, 2020. This motion was also 

denied. A timely appeal followed. We affirm.

I. A restraining order and the reaction thereto

A temporary restraining order naming appellant as the 

restrained person and respondent as the protected person was 

issued on May 8, 2018.

This event was significant for three reasons. First, it 

marked the end of the relationship between respondent and 

appellant that had begun in December 2016. Second, it spelled 

the beginning of appellant’s troubles with the music recording 

industry. Third, it resulted in appellant being evicted from his 

residence in Santa Clarita and caused him to leave California for 

a while. This impacted on attempts to serve him with process 

when respondent’s complaint was filed.
3

Appellant has admitted that this restraining order, and 

another restraining order obtained by another individual with 

claims similar to respondent’s, damaged his career and business 

to the point that “[r]ecord labels and artists stopped working with 

me after the allegations surfaced in May 2018.” Appellant 

acknowledged in his declaration supporting the motion to set 

aside the default that he “did leave Los Angeles for certain 

periods of time to get away from all the chatter concerning the 

allegations [of the requests for restraining orders].” In another 

declaration appellant stated he was away from Los Angeles in 

May and June 2018.

II. The complaint

The complaint, filed on December 27, 2018, alleges that

respondent had a burgeoning career as a model when she met 

appellant who, as a well known musical producer and artist,

promised musical stardom for her with him as the guiding light 

of that career. Although appellant raped respondent on a joint 

trip to Miami, respondent managed to begin recording under a 

production deal generated by appellant. Nonetheless, the sexual, 

emotional, and physical abuse continued from January 2017 to 

May 2018, with six more rapes and a great deal of emotional and 

physical abuse, with respondent increasingly dependent on 

appellant for the basic necessities of life. This continued until 

respondent’s sister appeared on the scene in May 2018 and took 

charge, taking respondent first to the hospital and then to the 

police to report the rapes and abuse.

The complaint sought damages in an unspecified amount, 

statutory damages under Civil Code section 52 (denial of civil 

rights or discrimination; damages), and punitive damages in an 

unspecified amount.
4

III. Attempts at service of the complaint

The complaint made the news immediately. On 

December 28, 2018, Billboard Web site (Billboard) published a 

lengthy article. (Kaufman, Aspiring Singer Files Sexual Assault 

Lawsuit Against Hip-Hop Producer Noel ‘Detail’ Fisher (Dec. 28, 

2018) Billboard.com <https://www.billboard.com/articles/

news/8491702/detail-producer-aspiring-singer-files-sexualassault-lawsuit> [as of July 26, 2021], archived at 

<https://perma.cc/WR4Y-DH6G>.) Digital Music News followed 

suit with a like article on December 31, 2018. (Sanchez, Noel 

‘Detail’ Fisher’s Alleged Sexual and Emotional Abuse Detailed 

(Dec. 31, 2018) DigitalMusicNews.com <https://www.

digitalmusicnews.com/2018/12/31/noel-detail-fisher-sexualassault-detailed/#comments> [as of July 26, 2021], archived at

<https://perma.cc/FCA2-ENAN>.) Respondent submitted the 

results of a “Google” search in December 2019 that reported links 

to these and other articles about respondent’s lawsuit against 

appellant.

Randall R. Petee, a private investigator retained by 

respondent’s attorney, had successfully personally served 

appellant at his residence with the restraining order on June 9, 

2018.

Petee attempted to serve appellant with the complaint at 

his residence on December 28, 2018, but found that appellant had 

moved away. Petee thereafter located where appellant’s brother 

was living but was unable to make contact with him or appellant.

Petee then searched data bases for property records in Southern 

California counties but was unable to find any information about 

appellant. Petee searched Internet and social media sites, 

learned that appellant had been in Los Angeles County on 
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various occasions, but was unable to obtain an address or any 

information about appellant’s whereabouts. Appellant had not 

left a forwarding address with the United States Postal Service. 

Petee was unable to effect personal service on appellant.

As noted, an order for publication was issued on May 10, 

2019.

IV. Respondent’s showing regarding damages

Respondent requested the entry of default and default 

judgment on July 24, 2019.

As part of her submissions in support of the request, 

respondent detailed the damages that she was seeking.

Respondent sought $2.5 million for pain and suffering and 

$2.5 million for emotional distress damages. In support of these 

claims, respondent contended that appellant’s “violent rapes and 

beatings placed [her] in a state of constant fear, further 

magnified by Fisher’s constant threats and aggressive tirades.” 

Respondent states that she has been diagnosed with 

posttraumatic stress disorder, anxiety, and depression. Among 

other like cases, respondent cited Janice H. v. 696 North 

Robertson, LLC (2016) 1 Cal.App.5th 586, where the jury 

returned verdicts of $1.25 million for past noneconomic loss and 

$4.1 million in future noneconomic loss for a rape that lasted five 

minutes. (Id. at pp. 591–592.) The Court of Appeal rejected the 

contention that this award was excessive. (Id. at pp. 601–604.)

Respondent also sought special damages for past and 

future therapy, respectively $36,835 and $90,825. She attended 

an intensive rehabilitation program for five weeks in 2018 at a 

cost of $33,160. She states that appellant’s “horrific behavior has 

shattered [her] world and [she] anticipates attending therapy for 

the foreseeable future.” She asked for therapy expenses for the 
6

next 14 years at $150 per session or an average of $525 per 

month. She asked for $2,520.51 in interest for past medical 

expenses.

After stating the familiar jurisprudence governing punitive 

damage awards, respondent sought $10 million in exemplary 

damages. She noted the case law that single-digit multipliers are 

likely to comport with due process. (Bullock v. Philip Morris 

USA, Inc. (2011) 198 Cal.App.4th 543, 563.) Since appellant’s 

default foreclosed discovery as to his net worth, respondent 

submitted that appellant has a high earning potential from 

royalties of 163 songs registered with Broadcast Music, with 

some songs rendered by Beyoncé that were on Billboard’s Hot 100 

Chart for 20 weeks, one of them topping out at No. 2.

V. The judgment and the assignment order

As noted, judgment for $15,130,906.74 was entered on 

September 24, 2019.

On October 10, 2019, the court entered an order assigning 

to respondent all of appellant’s interests in copyrights, royalties, 

commissions, and other revenue from Sony/ATV Music 

Publishing, Broadcast Music, Sound Exchange, Universal Music 

Group, Detail Music, Joseph Trail, Ooh Trae, John R. Road, and 

Boonk Gang until such time as the judgment is fully satisfied. 

The order restrains appellant and his agents from diverting the 

aforesaid interests except as necessary to satisfy the judgment.

Predictably, this order drew the first sign of life from 

appellant1 by way of the motion to set aside the default, which he 

filed in propria persona on October 30, 2019.

____________________________________________________________

1 Respondent states that appellant did not appear for the 

hearing on the restraining order.
7

VI. The first motion to set aside the default

The motion to set aside the default filed in propria persona

by appellant was a handwritten document consisting of two 

pages. The sole ground asserted in the motion was that “[b]ased 

on [California Rules of Court,] Rule 473.58 Service of Summons 

did not give Actual Notice in time to defend.” Respondent filed 

an opposition to the motion. The reply to the opposition was also 

filed in propria persona but it appears to have been prepared by 

the lawyer who eventually represented appellant in the second 

motion to set aside the default.

The reply was supported by a declaration by appellant 

under penalty of perjury. In that declaration, appellant denied 

having avoided service and stated that he had been “homeless 

and couch surfing for a period of time” after he had been evicted 

from his home. He stated that he learned about the complaint 

only in October 2019 when a friend told him that he had read 

about the $15 million judgment in a magazine. The reply simply 

repeated the averments of appellant’s declaration.

Prior to the hearing on this motion, respondent filed a 

request that the court take judicial notice of the declaration 

under penalty of perjury by appellant filed in another case, Janae 

Knox v. Noel Fisher et al. (Super. Ct. L.A. County, 2020, No. 

BC710221) (hereafter the Knox declaration).

In the Knox declaration appellant states that he had three 

Grammy Award nominations and had won that award once. 

Appellant goes on to state that two restraining orders that were 

issued in May 2018 (one of them being respondent’s) were picked 

up by the press (e.g., TMZ and Rolling Stone) and widely 

disseminated, which effectively ruined his career. He confessed 

he did not know “how to handle the situation so I ran. I left Los 
8

Angeles area sometime between May and June 2018.” 

“Beginning in June 2018 and continuing throughout 2018, I was 

homeless and sleeping either behind a warehouse in the Castaic 

Lake area or on a couch in the living room of any one who would 

let me in.”

Attorney Muammar Reed appeared for appellant at the 

hearing of the motion to set aside the default. The motion was 

denied without prejudice. The minute order states that 

“[d]efense counsel states he wishes to proceed with a new Motion 

to Set Aside/Vacate Default. Counsel is directed to reserve the 

first available date on the Court’s reservation system then 

contact the staff of Department 51 to advance it.” Notice of the 

ruling was served on January 9, 2020.

VII. The second motion to set aside the default

This motion was prepared by Attorney Reed and it was 

filed on January 23, 2020. The motion relied on Code of Civil 

Procedure sections 473.5 (motion to set aside default) and 473, 

subdivision (b) (relief from order due to mistake, inadvertence or 

excusable neglect). However, this motion did not add anything 

new that was of any consequence.

Noting that appellant had been evicted from his home in 

“early to mid-2018,” the motion contended, as had the reply to the 

first motion, that appellant had been homeless during the time 

efforts were made to serve the complaint. The motion denied 

that appellant had been avoiding services and stated that 

appellant did not know of the filing of the complaint. Appellant’s 

declaration in support of this motion repeated his earlier 

disclaimers and went on to state: “I did not read any articles or 

publications about me that were written after the lawsuit was 
9

filed on December 27, [2018] or before learning of the default 

judgment sometime in October 2019.”

In denying this motion, the court found that the second 

motion, as a motion for reconsideration, was not timely in that it 

was not filed within 10 days of notice of entry of the denial order. 

The court then noted that all of the facts set forth in the second 

motion appear to have been known to appellant at the time he 

filed the first motion, meaning that nothing new had been 

presented in the second motion. The court closed by finding that 

there was “convincing circumstantial evidence that [appellant]

willfully evaded service of the complaint and that he did have 

actual knowledge of the action in time to defend against it.”

DISCUSSION

I. WE DEEM THE SECOND MOTION TO BE TIMELY

The record is ambiguous on whether leave was given for 

the filing of a second motion to set aside the default. It is 

possible to interpret the court’s minute order of January 9, 2020,

as giving newly retained counsel, who appeared for appellant in 

the hearing on the first motion, leave to file a second motion

without regard to the first motion, which had been filed in 

propria persona by appellant. Giving appellant and his counsel 

the benefit of a doubt, we deem the second motion to have been 

timely and filed with leave of court and not subject to the 10-day 

limitation on motions for reconsideration.

II. PUBLICATION IN THE LOS ANGELES DAILY 

JOURNAL WAS LEGALLY EFFECTIVE

Appellant contends that publication in the Los Angeles 

Daily Journal (June 12, 2019) was not likely to give him actual 

notice. Appellant claims that Variety or Billboard are of wider 
10

circulation than the Los Angeles Daily Journal and would have 

been more apt to give him actual notice.

The statutory standard for publication is a newspaper 

published in this state “that is most likely to give actual notice to 

the party to be served.” (Code Civ. Proc., § 415.50, subd. (b).)

The Los Angeles Daily Journal has been held to be newspaper 

that meets this standard. (Giorgio v. Synergy Management 

Group, LLC (2014) 231 Cal.App.4th 241, 245, 249.) We see no 

reason to revise this conclusion. Appellant is a sophisticated 

businessman, in addition to being a recording artist, who 

understands the function of legal newspapers like the Los

Angeles Daily Journal. It is not the circulation alone that is 

determinative. The specialization and function of a legal 

newspaper like the Los Angeles Daily Journal is, among other 

things, to publish legal notices, which makes it the proper vehicle 

for publication of service.

It is interesting that appellant touts Billboard as superior 

to the Los Angeles Daily Journal. As we have noted, Billboard

was one of the publications that ran a story on respondent’s 

action the day after it was filed. With appellant’s interests and 

ties to the music world, the story was difficult to miss.

Appellant also faults respondent for not mailing him a copy 

of the summons and complaint. Appellant is right that this must 

be done but only if the “address is ascertained before expiration 

of the time prescribed for publication of the summons.” (Code 

Civ. Proc., § 415.50, subd. (b).) The problem was that appellant 

disappeared after respondent’s complaint was filed, leaving no 

forwarding address with anyone, including the United States

Postal Service.
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III. THE PUBLICATION INCLUDED A SEPARATE 

STATEMENT OF DAMAGES

Appellant contends that when service is effected by 

publication, a separate statement of damages must be published 

in the same manner as service of summons. Appellant is right.

(Code Civ. Proc., § 425.11, subd. (d)(1).) Appellant appears to be 

unaware of the fact that that is exactly what was done in this 

case.

Appellant also states that the amount of exemplary 

damages should not be alleged in a complaint. As before, 

appellant seems to have missed that respondent’s complaint did 

not allege the amount of punitive damages sought.

After these two false starts, appellant sandwiched into the 

text of this argument about the publication of statements of 

damages the argument that the $10 million awarded as punitive 

damages was excessive and not supported by the evidence.

There are two reasons why we disregard this argument. 

First, appellant’s procedural rights were cut off by the entry of 

the default, which means that appellant cannot contest the 

merits of the case, which includes contesting the amount of 

punitive damages awarded. (See Steven M. Garber & Associates 

v. Eskandarian (2007) 150 Cal.App.4th 813, 823.) Second, a 

judgment by default operates as an admission of matters well 

pleaded in the complaint. (Brown v. Brown (1915) 170 Cal. 1, 5.) 

This means that respondent’s entitlement or punitive damages is 

no longer an open issue. It is also true that the manner in which 

appellant made this argument violates the California Rules of 

Court, rule 8.204 (a)(1)(B), which requires each argument to be 

stated under a separate heading. The claim that the punitive 
12

damages awarded were excessive should have been stated under 

its own heading.

While we disregard appellant’s argument, we note the 

principle that single-digit ratios between compensatory and 

exemplary damages are preferred in determining whether the

punitive damages have a reasonable relationship to 

compensatory damages. (See Bullock v. Philip Morris USA, Inc.,

supra, 198 Cal.App.4th at pp. 563, 565.) A multiplier of two is in 

the low single digits.

IV. THE COURT DID NOT ERR IN REQUIRING

APPELLANT TO PRODUCE EVIDENCE THAT 

HE WAS UNAWARE OF THE FILING OF THE 

COMPLAINT

Appellant contends that the court improperly imposed on 

him the burden of proving that he was unaware of the filing of 

the complaint.

Since it was appellant who filed the motion to set aside the 

default, it was appellant who had the burden of producing 

evidence to support the motion. (Evid. Code. § 110.)2 This was 

not the burden of proof.

3 “The burden of producing evidence as to 

a particular fact is on the party against whom a finding on that 

fact would be required in the absence of further evidence.” 

(Evid. Code, § 550, subd. (a).) Unless appellant produced 

____________________________________________________________

2 “ ‘Burden of producing evidence’ means the obligation of a 

party to introduce evidence sufficient to avoid a ruling against 

him on the issue.” (Evid. Code, § 110.)

3 “ ‘Burden of proof’ means the obligation of a party to 

establish by evidence a requisite degree of belief concerning a fact 

in the mind of the trier of fact or the court.” (Evid. Code, § 115.)
13

evidence that he did not know about the filing of the complaint, 

an adverse finding on that fact would have been required. Thus, 

he had the burden of producing evidence on that issue.

V. THERE WAS SUBSTANTIAL EVIDENCE THAT 

APPELLANT WILLFULLY EVADED SERVICE

The trial court ruled that there was circumstantial 

evidence that appellant willfully evaded service of the complaint 

and that he had actual knowledge of the action in time to defend 

against it.

We agree with this finding. Respondent’s complaint 

received immediate and widespread publicity in publications with 

which appellant was without doubt very familiar. (His express 

denial that he read about the complaint in these publications is 

not credible.) In any event, the most convincing indication that 

appellant was well aware of the complaint is that he completely 

disappeared from the scene after December 2018. Given his 

wide-ranging presence in the recording industry, it must have 

taken considerable effort on his part during the first months of 

2019 to obliterate all signs of his presence in Los Angeles. Until 

the order of publication issued in May 2019, the process server 

was unable to find any trace of a residence, although he did 

detect signs that appellant was, at least from time to time, 

present in this city.
14

DISPOSITION

The order is affirmed. Respondent is to recover her costs 

on appeal.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.