Boermeester v. Carry
| Decision Date | 28 May 2020 |
| Docket Number | B290675 |
| Citation | 263 Cal.Rptr.3d 261 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Matthew BOERMEESTER, Plaintiff and Appellant, v. Ainsley CARRY et al., Defendants and Respondents. |
Hathaway Parker, Mark M. Hathaway and Jenna E. Parker, Los Angeles, for Plaintiff and Appellant.
Young & Zinn, Julie Arias Young and Karen J. Pazzani, Los Angeles, for Defendants and Respondents.
Matthew Boermeester was expelled from the University of Southern California (USC) for committing intimate partner violence against Jane Roe.1 The superior court denied his petition for writ of administrative mandate to set aside the expulsion. He appeals, contending, among other things, that the process leading to his expulsion violated his right to a fair hearing. We conclude USC's disciplinary procedures at the time were unfair because they denied Boermeester a meaningful opportunity to cross-examine critical witnesses at an in-person hearing. We thus reverse and remand with directions to the superior court to grant the petition for writ of administrative mandate.
Boermeester was a member of the USC football team, who kicked the game-winning field goal for USC at the 2017 Rose Bowl. Roe was also a student-athlete who played tennis for USC. Boermeester and Roe dated from March 2016 to approximately October 2016. On January 21, 2017, two USC students observed Boermeester put his hand on Roe's neck and push her against a wall. They reported this incident to the USC men's tennis coach, which resulted in the initiation of an investigation. Boermeester did not deny he put his hand on Roe's neck and that she had her back against a wall while he did so. He contends, however, he did not intend to harm her and they were merely "horsing around."
Roe agreed to meet with USC's Title IX office3 on January 23, two days after the incident. Roe's advisor was present.
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 they returned to her home after getting food. 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 woken up 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 got back to her room.
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, 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 violence4 for which there were eyewitnesses.
On January 26, 2017, USC notified Boermeester of an investigation into the events of January 21 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.
That day, Roe exchanged a series of text messages with the investigator stating, I am She further stated, 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.
Roe and her advisor met with the investigator on January 30, 2017. 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, Roe stated that she did not feel she was in danger. She was upset they could not speak. She believed that the investigation was too harsh and that instead, Boermeester should be mandated to go to counseling and be placed on probation.
The next day, Roe texted the investigator, "Will I know tomorrow if I can get rid of my statement because I really don't want it used and I don't even think it is fair because I still disagree with somethings I said so to use it wouldn't be accurate and I just have been stressing about if it's being used or not so will [the coordinator] have an answer for me tomorrow?"
Meanwhile, media attention surrounding the suspension had begun. Roe's roommate reported Roe was worried about the impact the publicity would have on Boermeester's future career and NFL prospects. On February 8, Roe tweeted in response to media reports about Boermeester:
On January 30, 2017, Boermeester was interviewed by the investigator with a USC administrative assistant present. Boermeester's mother attended as his advisor. Boermeester generally confirmed the events of January 21 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 reported he and Roe spent the next three nights together and were sexually intimate. They saw each other every day until she left for a tennis match on January 26, 2017. Boermeester recalled he and Roe laughed about TS and DH assuming it was "real violence."
Boermeester believed the eyewitnesses misinterpreted what they saw. Although he understood how it looked to them, he thought it was ridiculous they wanted her to spend the night over at their home rather than sleep with him.
He explained he and Roe sometimes put their hands on each other's necks during sex. When asked what impact this has had on him, he stated, The investigator asked, "just in public?" He responded, "Well no, just to never give the impression of domestic violence." Boermeester stated, 5
On February 14, 2017, the Title IX office notified Boermeester ...
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