Boermeester v. Carry

318 Cal.Rptr.3d 909

Matthew BOERMEESTER, Plaintiff and Appellant,

v.Ainsley CARRY et al., Defendants and Respondents.

B290675

Court of Appeal, Second District, Division 8.

Filed March 7, 2024

As Modified March 8, 2024

APPEAL from a judgment of the Superior Court of Los Angeles County, Amy D. Hogue, Judge. Affirmed. (Los Angeles County Super. Ct. No. BS170473)

Hathaway Parker, Mark M. Hathaway and Jenna E. Parker, Los Angeles, for Plaintiff and Appellant.

Young & Zinn, Julie Arias Young, Karen J. Pazzani, Los Angeles; Horvitz & Levy, Mark A. Kressel, Encino, Scott P. Dixler, Beth J. Jay, San Francisco, Jeremy B. Rosen, Burbank,; Pazzani & Sandhu and Karen J. Pazzani, Los Angeles, for Defendants and Respondents.

STRATTON, P. J.

[1] Following his expulsion from the University of Southern California (USC) for engaging in intimate partner violence, Matthew Boermeester filed a petition for writ of administrative mandate in the superior court pursuant to Code of Civil Procedure section 1094.5. The superior court denied the petition, and Boermeester appealed. In a divided opinion, we held that Boermeester had a right to cross-examine adverse witnesses at the live hearing at which USC adjudicated the allegation and we reversed the trial court’s judgment. The California Supreme Court granted USC’s petition for review (Boermeester v. Carry (May 28, 2020, B290675) — Cal.App.5th—, 263 Cal.Rptr.3d 261, opn. ordered nonpub. Sept. 16, 2020), reversed our opinion, and held that Boermeester did not have such a right. (Boermeester v. Carry (2023) 15 Cal.5th 72, 311 Cal.Rptr.3d 24, 532 P.3d 1084 (Boermeester).) The Supreme Court then remanded this matter to us with clear instructions "to determine in the first instance the remaining claims Boermeester raised on appeal that the Court of Appeal expressly declined to reach." (Id. at p. 98, 311 Cal. Rptr.3d 24, 532 P.3d 1084.) We are bound by these instructions. (See Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701, 107 Cal.Rptr.2d 149, 23 P.3d 43.)

Following remand, the parties filed supplemental briefs. Boermeester contends USC’s decision is not supported by substantial evidence; USC’s use of a combined investigator-adjudicator procedure denied him fair process; and USC’s appeal process amplified the harm from the use of an investigator-adjudicator. We find substantial evidence supports USC’s decision and find no denial of fair process in USC’s use of an investigator-adjudicator or in its appeals process, either structurally or as conducted in this case. We affirm the denial of the writ.

BACKGROUND

In 2016 and 2017, Boermeester was a member of the USC football team and Jane Roe was a member of USC’s women’s tennis team. Boermeester and Roe dated from March 2016 to approximately October 2016. On January 21, 2017, after midnight, three male USC students heard screaming in the alley behind their residence. Two of them looked outside and observed Boermeester put his hand on Roe’s neck and push her against a wall. One of the men, MB2, went outside, which broke up the encounter and resulted in Boermeester and Roe walking away. The two other men, TS and DH, lived in the other half of Roe’s duplex and spoke with her soon after the incident.

One or more of the men reported this incident to the USC men’s tennis coach, who reported it to USC’s Title IX Coordinator, Gretchen Means. USC began an investigation into the incident. Means and USC’s Title IX Investigator Lauren Helsper met with Roe on January 23, 2017. We previously summarized Roe’s statements as follows:

Roe reported she spent the day with Boermeester on Friday, January 20, 2017. He called to ask her to pick him up from a party at approximately 12:30 or 1:00 a.m. on January 21, 2017. She did, and after getting food, they returned to her home. Boermeester was the drunkest she had ever seen. He yelled in the alley behind her house, trying to be funny.

Roe had her dog Ziggy with her. Boermeester wanted her to drop Ziggy’s leash to allow him to run in the alley. He grabbed the back of Roe’s hair hard and said "drop the fucking leash." Roe refused. Boermeester responded by increasing his hold on Roe’s hair, causing her to drop the leash because it "hurt."

Boermeester then grabbed Roe "tight" by the neck, causing her to cough. He laughed and let go. He grabbed her by the neck twice more and pushed her hard against a concrete wall that ran along the alley behind her duplex. Roe’s head hurt after she hit the wall.

Three USC students, DH, TS, and MB2, exited their apartments. Roe believed they were awakened by the loud yelling. When they asked after Roe, Boermeester told them that he and Roe were just "playing around." DH and TS, who lived on the other side of Roe in the duplex, took her into their apartment. Boermeester was asleep when she returned to her place.

The next day, Roe told Boermeester that he scared DH and TS because "it looked really bad when you pushed me and it looked really bad with your hand around my neck." He replied, "it was a joke, we were messing around, tell them to calm down" and added, "tell them you’re into that," implying that it was foreplay. When Roe asked him, "what if you hurt me bad? Would you feel bad? If you were playing around and it hurt?" Boermeester told her, "no" because it would have been "brought on by" her.

The Title IX coordinator explained Roe had the option to request an avoidance of contact order (AOC) prohibiting Boermeester from contacting her. Roe indicated she wanted the AOC as well as temporary emergency housing because Boermeester had a key to her house. The investigator noted Roe was crying throughout the meeting.

Roe acknowledged she was in a "bad situation" but was conflicted about what to do because she still cared for Boermeester. Roe indicated she did not want to participate in an, investigation and did not want Boermeester to be charged with anything other than the January 21, 2017 incident. She was informed the Title IX office was obligated to investigate and could proceed without her consent. Boermeester was charged with the January 21, 2017 incident of intimate partner violence for which there were eyewitnesses.

On January 26, 2017, USC notified Boermeester of an investigation into the events of January 21, 2017, and that he may have violated USC’s sexual misconduct policy by committing intimate partner violence. He was placed on interim suspension and received an AOC letter.

As we previously summarized, that same day Roe exchanged a series of text messages with the investigator stating, I am "pretty freaked out about today. I know I’ve said this a lot but I really can’t emphasis [sic] enough that you guys please please make it clear that I did not bring this forward that I want nothing to do with it and I’m not pressing any charges." She further stated, "He can’t know I made a statement. Can you not tell him I made a statement[?] Like he can’t know I met with you guys." The investigator assured her Boermeester would be advised the investigation was initiated by the Title IX office and he would not be made aware of her statement until the time of the evidence review.

On January 30, 2017, Roe and her advisor met with the investigator. We summarized that meeting as follows:

Roe indicated she had reservations about the investigation because she felt as though her voice was not heard and that it was more about "burning him" than her wellbeing. Roe explained she thought she was in a supportive environment when she initially met with the Title IX office and so she freely shared her story. Although she understood the Title IX office was "trying to do the right thing," it has made things for her more "difficult." Roe felt bullied by the process and no longer "fully believe[d]" many of the statements she initially made to the Title IX office.

Roe also requested the AOC be lifted because she had changed her mind. She requested the AOC during her first meeting because she did not "trust" that it would be clearly conveyed to Boermeester that the investigation was initiated by the Title IX office, not her. She did not want Boermeester to be "mad" at her. She remarked "at the end of the day, he is like my best friend so it is like you are taking that away too." She explained, "you think this is to protect me. Feels like I lost control on everything and I feel like you are controlling who I can talk to." Roe stated that she did not feel she was in danger. She was upset they could not speak to each other. She Relieved that the investigation was too harsh and that instead, Boermeester should be mandated to go to counseling and be placed on probation.¹

Boermeester was also interviewed by USC on January 30, 2017. We previously summarized his statement concerning the incident as follows:

Boermeester generally confirmed the events of January 21, 2017, as Roe had described them; however, he denied intending to hurt her.

He reported he and Roe ate at the Cheesecake Factory at approximately 4:00 p.m. Later that night, he text messaged Roe to pick him up from a party because he was unable to drive. He had three glasses of wine at the restaurant and four to five beers at the party. When they arrived at Roe’s home after picking up food, they began playfully throwing french fries at one another.

Boermeester wanted to watch Roe’s dog run around so he asked her to let the dog go. They were standing by a wall when he instructed her to release the dog. He acknowledged he put his hand around her neck while she stood against the wall, but denied they were arguing or that he was angry. He also denied choking her or slamming her head against the wall. He believed Roe felt safe with him. He asserted he did not have a tight grip on her. Boermeester believed the eyewitnesses misinterpreted what they saw. He explained he and Roe sometimes put their hands on each other’s necks during sex.

USC’s Title IX investigator interviewed 16 people in total, including the eyewitnesses, Roe’s roommates and...