Novak, Lisa Ann #163399

Redwood City
San Mateo County
Admitted January 1993

San Mateo Judge Admonished for Failure to Disclose Communication, Demeaning Comments

The Commission on Judicial Performance said Judge Lisa A. Novak of the San Mateo County Superior Court should have disclosed a January 2017 conversation with her bailiff because it related to a case she was overseeing at the time.

California’s judicial watchdog agency issued a public admonishment to a San Mateo judge Wednesday for her alleged failure to disclose improper ex parte communications and her public critique of a defense attorney’s professionalism.

STATE OF CALIFORNIA
BEFORE THE COMMISSION ON JUDICIAL PERFORMANCE
IN THE MATTER CONCERNING DECISION AND ORDER IMPOSING
JUDGE LISA A. NOVAK PUBLIC ADMONISHMENT

This disciplinary matter concerns Judge Lisa A. Novak, a judge of the San Mateo
County Superior Court. Pursuant to rule 116 of the Rules of the Commission on Judicial
Performance Judge Novak and her attorney, Janet L. Everson, appeared before the
commission on May 16, 2018, to object to a notice of intended public admonishment
issued on December 21, 2017. Judge Novak has waived her right to formal proceedings
under rule 118 and to review by the Supreme Court. Having considered the written and
oral objections and argument submitted by Judge Novak and her counsel, and good cause
appearing, the Commission on Judicial Performance issues this public admonishment
pursuant to article VI, section 18(d) of the California Constitution, based on the following
statement of facts and reasons.

STATEMENT OF FACTS AND REASONS
Judge Novak has been a judge of the San Mateo County Superior Court since
2005. Her current term began in 2013.

As set forth below, the commission found that Judge Novak failed to be patient,
dignified, and courteous to a criminal defense attorney, and made remarks that could
reasonably be expected to impair the attorney-client relationship; failed to disclose
improper ex parte communications received from her bailiff; and made improper remarks
at a judges’ meeting.

I. Comments to Attorney in People v. Golden
On August 19, 2015, Judge Novak presided at a preliminary hearing in People v.
Leon Allen Golden (No. SF399441A/SM397700A). After Judge Novak called the case
and Deputy District Attorney Ashish Bhatt stated his appearance, defense counsel Mara
Feiger said, “Mara Feiger on behalf of Mr. Golden. There is a defense motion to exclude
any witnesses.” (R.T. 3:20-22.) Judge Novak did not address this, and instead discussed
with Ms. Feiger where each party should sit in the courtroom. In her response to the
commission, Judge Novak explained that she did not hear the motion to exclude because
the parties and counsel were realigning their positions in the courtroom at the time.

The prosecutor then called the alleged victim as the first witness. During cross
examination, the witness testified that he was aware of an allegation that he had taken
money from Mr. Golden, and denied that his father had told him that Mr. Golden was
unhappy that the witness had taken Mr. Golden’s money. Ms. Feiger then asked the
witness, “In addition to taking Mr. Golden’s money, you were aware —” (R.T. 16:2-3.)
Judge Novak interrupted, said that the question was inappropriate because it assumed
facts not in evidence, and admonished Ms. Feiger to avoid asking questions that might
force the witness to incriminate himself. Judge Novak said she would not allow a
question that assumed the witness had committed a crime, despite the absence of an
objection by the prosecution, because she had a duty to protect the witness’s rights. Ms.
Feiger continued with the question: “You were accused by Mr. Golden of slashing his
tires right after you were accused of stealing his money, right?” (R.T. 16:20-22.)

Later during Ms. Feiger’s cross-examination, the witness referred to another
individual who was in the courtroom, and Ms. Feiger said to the prosecutor, “I guess you
are not calling him as a witness today?” (R.T. 17:22-23.) The prosecutor responded that
he was not planning to call the individual as a witness, and the following exchange
occurred:

THE COURT: There was no motion to exclude.

MS. FEIGER: There was. That was the very first motion
that I made.

THE COURT: No.

MS. FEIGER: You can ask your court reporter.

THE COURT: I didn’t grant a motion. I didn’t hear a
motion, [^j] Was there a motion to exclude?
THE REPORTER: I’ll have to check my notes.

THE COURT: I didn’t hear one, and I didn’t grant one.

MS. FEIGER: It’s the very first thing I did.

THE COURT: If you made one, I didn’t rule on it. There is
no motion to exclude. Sounds like it’s irrelevant because the
Deputy DA indicated to you that he is not calling a person.

[T|] Your next question.
MS. FEIGER: Well, if there is any other witnesses in the
courtroom, then I’m going to renew my motion to exclude
witnesses.

THE COURT: That motion at this point is denied because
it’s not timely, Ms. Feiger. [*|j] Your next question.
(R.T. 17:25-18:21.)
After Ms. Feiger asked the witness another question, Judge Novak again stated,
that counsel had not made a motion to exclude witnesses and quoted a portion of the
transcript beginning after Ms. Feiger’s reference to a motion to exclude witnesses and the
discussion of where the parties should sit. Ms. Feiger stated that she had made the
motion before the quoted discussion. Judge Novak disagreed, stating, “I am just looking
at the record, which is consistent with my recollection….” (R.T. 19:15-17.) Ms. Feiger
completed her cross-examination and the prosecutor called two additional witnesses.

After the parties indicated that they had no further evidence to present, Judge Novak
stated that Ms. Feiger could present argument, and the following exchange occurred:

MS. FEIGER: Well, Em not going to miss an opportunity
like to exclude witnesses when Pm not on the record.

THE COURT: Ms. Feiger, those comments are
unprofessional. I appreciate that you think you made a
motion to exclude witnesses.

MS. FEIGER: I know I did.

THE COURT: Don’t interrupt me. You have been extremely
unprofessional this afternoon. You have been disparaging of
the witness, irrespective of the Deputy DA not objecting.

You have been unprofessional to the witness. You have been
unprofessional to this court. I have been very patient. My
patience has ended with your behavior this afternoon. You
can have your temper tantrum outside of my courtroom, [f]
If you didn’t make a motion to exclude witnesses and it’s
brought to your attention, live with it and learn from it. I’m
sure you thought that you had made a motion to exclude
witnesses because you probably do in every hearing. When
we do things out of habit and custom, we think that we
always do them. You didn’t make the motion. I pointed that
out to you. You were disrespectful to the court. I let it slide.

Hj] I then reviewed the record corroborating the fact that you
didn’t make the motion. You were again disrespectful to the
court, and I let it slide. I’m not letting it slide any longer. Let
it go. Argue any issues that you have on the evidence of
this case. Act like the professional that you are. ffl] Do you
have any argument on the evidence in this case?
(R.T. 26:20-27:24.)

The commission found that Judge Novak’s comments were discourteous and
demeaning toward Ms. Feiger and constituted a violation of the judge’s duty to be
patient, dignified, and courteous to lawyers and others who appear before the judge.
(Canon 3B(4).) Moreover, several of the judge’s remarks, made in open court and in the
presence of Ms. Feiger’s client, were of a nature that could reasonably be expected to
impair the attorney-client relationship. Judge Novak remarked that Ms. Feiger was
“disparaging of the witness” and “unprofessional to the witness.” Ms. Feiger’s
questioning of the witness about whether he was aware that the defendant had previously
accused the witness of uncharged crimes was arguably relevant to the witness’s bias and
state of mind. If the judge thought the line of questions was irrelevant, she could have
made that ruling and advised the witness of his Fifth Amendment rights without
disparaging Ms. Feiger, particularly in the presence of her client.

Judge Novak’s statements that Ms. Feiger was “extremely unprofessional,”
“unprofessional to this court,” “disrespectful to the court,” and ha ving a “temper
tantrum”—which appear to have been based, at least in part, on exchanges resulting from
the judge’s mistaken belief that Ms. Feiger had not made a motion to exclude witnesses,
and later claimed that she had—also constituted improper accusations of professional
misconduct. Even if Ms. Feiger had acted unprofessionally, as Judge Novak states was
the case here, the extent to which Judge Novak criticized Ms. Feiger in open court and in
front of her client was conduct that could reasonably be expected to impair the attorney-
client relationship. A judge has the option of calling counsel to the bench or into
chambers if the judge feels that an attorney has acted unprofessionally, particularly if the
judge feels that more than a brief, corrective comment is necessary.

II. Failure to Disclose Unauthorized Ex Parte Communications in People v, Quintana
On January 4 and 5, 2017, Judge Novak heard a motion to dismiss in People v.
Rachel Quintana (No. 16-SM-001677). The hearing largely concerned whether Sergeant
Michael Otte had recorded with a cell phone the events surrounding the arrest of
defendant Rachel Quintana, which resulted in additional misdemeanor charges of battery
on an officer and resisting arrest. Sergeant Otte had earlier denied that such a recording
existed. On the first day of the hearing, the defendant’s mother testified, and the defense
introduced a cell phone video taken by a family member from inside the house that
showed Sergeant Otte outside the house holding a cell phone horizontally and appearing
to record the interactions between officers and the defendant. On the second day of the
hearing, Sergeant Otte testified that he did not record the incident, but only held his
phone up to make it appear that he was recording in an effort to get the defendant to
comply with the officers’ orders.

Judge Novak’s bailiff approached her outside of the presence of the prosecutor and
defense counsel and said, “I think I may have seen that video,” or words to that effect.
Judge Novak told her bailiff she could not discuss the matter. Judge Novak recalled the
communication taking place in the hallway while waiting for the proceeding to begin.
Judge Novak did not disclose the communication from her bailiff to the parties.

At the end of the hearing, Judge Novak stated that she was troubled by Sergeant
Otte’s testimony that he had not made a recording of the arrest of Ms. Quintana. Judge
Novak said, “It is evident that the man was recording this incident, and I am very
troubled that his testimony was proffered because it was not honest.” (R.T. 75:2-4.)
Judge Novak also made a finding of bad faith, stating, “Knowing that he recorded a
video, knowing that he misrepresented under oath that he recorded a video, knowing that
the video no longer exists, one is reasonable in inferring that it was not preserved in bad
faith. So I have no problem finding that.” (R.T. 75:5-9.)
The commission found that Judge Novak’s failure to disclose her bailiff s remarks
regarding the video constituted a failure to promptly notify the parties of unauthorized ex
parte communications, as required by canon 3B(7)(d), and a failure to disclose
information relevant to the question of disqualification (canon 3E(2)(a)).

The central issue before Judge Novak was whether Sergeant Otte, who was her
bailiffs colleague at the sheriffs office, had video-recorded the defendant’s arrest, as he
appeared to have done in the video taken from inside the defendant’s home. The bailiff s
statement that he may have “seen that video,” bore directly on the question before the
judge and constituted an unauthorized ex parte communication. It also raised a question
as to whether the bailiff was a potential witness in the proceedings before the judge.

In her response to the commission, Judge Novak stated that when her bailiff said he “may
have seen that video,” she was not certain whether he was referring to the video recorded
by Sergeant Otte or to the video played in court of Sergeant Otte holding his cell phone
6
that was recorded by a family member. She also said that her bailiff had been seated in a
location where he could not see the recording played for the court. Nevertheless, the
judge knew it was possible that her bailiff was referring to the video taken by Sergeant
Otte. Therefore, she had an obligation to disclose that information to the parties.
If a judge receives an unauthorized ex parte communication, the judge must
promptly notify the parties of the substance of the communication and provide them with
an opportunity to respond. (Canon 3B(7)(d).) Judge Novak’s conduct was inconsistent
with her duties under canon 3B(7), regardless of whether she considered the bailiff s
statement in her ruling.

As noted, Judge Novak recalls the conversation with her bailiff taking place
during the proceeding. The judge’s bailiff reported that he recalled the conversation
taking place after the hearing on the motion concluded. Judge Novak contends that if her
bailiffs recollection is correct, she did not have an obligation to inform the parties. The
judge’s failure to disclose the ex parte communication constitutes misconduct regardless
of whether the communication occurred during the proceeding or following her ruling on
the motion. A matter or proceeding continues to be pending through any period during
which an appeal may be filed and any appellate process until final disposition. (Cal.
Code of Judicial Ethics, Terminology.) Even if Judge Novak had already ruled on the
motion, the district attorney’s office could file an appeal and there could be future
motions concerning the recording. Thus, the matter was still pending and Judge Novak
had a duty to promptly notify the parties of the substance of the communication. (Canon
3B(7).)

III. Improper Comments at Judges’ Meeting
After the hearing in People v. Quintana, Judge Novak attended a judges’ meeting
on January 20, 2017. There, Judge Novak informed the court’s judges that she had made
a finding that Sergeant Otte perjured himself. Judge Novak described the motion
hearing, stating that Sergeant Otte had testified that he never made a recording of the
defendant’s detention, despite a second video recording depicting him doing so. Judge

Novak informed the court’s judges that she had granted the motion because she found
Sergeant Otte’s testimony to be not credible. She told the judges that she was providing
this information to them as an “FYI” and that they could do with it what they wished.
Because this was a meeting for all judicial officers, the judges who would later
hear People v. Quintana could be present, in addition to the judges of the court’s
appellate division, who would hear writ petitions or an appeal in People v. Quintana.

Judge Novak contends that her comments were proper because she did not mention the
case by name. The details she shared, however, were such as to make the matter
identifiable to any judge who heard subsequent proceedings in the matter. Moreover,
because Sergeant Otte could be called as a witness in other cases, Judge Novak’s
comments could bear on other cases before the judges at the meeting.

The commission found that Judge Novak’s remarks to the judges at the meeting,
made while People v. Quintana was pending and when Sergeant Otte was a potential
witness in that case and in other pending and impending cases, constituted unauthorized
ex parte communications not permitted by the exception allowing judges to consult with
other judges (canon 3B(7)), and also constituted comments that might substantially
interfere with a fair trial or hearing (canon 3B(9)). Although judges are permitted to
consult with each other and assist each other in their adjudicative responsibilities, Judge
Novak was not consulting with other judges and seeking their advice, but was instead
informing them of her evaluation of the evidence in a pending case and potentially
impairing their independence and impartiality. Judge Novak’s remarks may have
interfered with the ability of the other judges present to avoid receiving factual
information that is not a part of the record or an evaluation of that factual information
(canon 3B(7)(a)). Further, canon 3B(7) expressly prohibits a judge from engaging in
discussions about a case with another judge who may participate in appellate review of
the matter. (Canon 3B(7)(a).)

Judge Novak’s remarks also called into question her impartiality and gave an
appearance of bias and embroilment. (Canons 2A, 3B(5).) Judge Novak stated that she
did not intend to suggest to the other judges that Sergeant Otte should not be trusted when
called as a witness in other hearings. She also stated, however, that her findings bore
directly on the sergeant’s credibility as a witness and so her disclosure of these findings
to other judges on the bench was “mandated.” She noted the close relationship between
the sheriffs office and the court and cited the need to have an unqualified trust
relationship with this partner.

Judge Novak did not have a duty to report her findings to her judicial colleagues,
and her conduct in doing so at a judges’ meeting was improper. If Judge Novak’s finding
that Sergeant Otte committed perjury constituted exculpatory evidence in cases where the
sergeant is a witness, it would be the duty of the district attorney’s office to disclose that
evidence to the defense, not the judge’s duty to disclose that evidence to other judges.
(See U.S. v. Bagley (1985) 473 U.S. 667, 676; Brady v. Maryland (1963) 373 U.S. 83,
87.)

Judge Novak’s conduct as set forth above was, at a minimum, improper action.
In determining that a public admonishment is the appropriate sanction, the
commission took into consideration that Judge Novak has been previously disciplined.
(Policy declaration 7.1 (2)(e).) In 2011, Judge Novak received an advisory letter for
raising a defendant’s bail and remanding him into custody after granting his request for a
substitution of counsel on the day of trial, a request she considered untimely. The
commission found that Judge Novak’s conduct, which included her remark that she had a
means by which she could ensure the case proceeded in a timely fashion, gave the
appearance that she was punishing the defendant for seeking new counsel or causing a
delay in the case, neither of which is a valid reason for raising bail, and violated her duty
to avoid the appearance of impropriety and to act at all times in a manner that promotes
public confidence in the impartiality of the judiciary.

The commission also took into consideration that in this matter, Judge Novak
engaged in three different incidents of misconduct, reflecting a lack of proper judicial
demeanor and a failure to understand and appreciate the requirements and restrictions
imposed upon judges by the canons. (Policy declaration 7.1(l)(a), (b).)

Commission members Nanci E. Nishimura, Esq.; Hon. Michael B. Harper; Ms. Mary Lou
Aranguren; Anthony P. Capozzi, Esq,; Hon. William S. Dato; Mr. Eduardo De La Riva;
Dr. Michael A. Moodian; and Mr. Adam N. Torres voted for this public admonishment.
Commission members Ms. Sarah Kruer Jager, Ms. Pattyl A. Kasparian, and Hon. Erica
R. Yew voted to impose a private admonishment.
Dated: May 3 0, 2018
Nanci E. Nishimura
Chairperson

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Corrupt Judge Lisa A Novak

Novak, Lisa Ann #163399