Doe v. White CA2/6

Filed 8/29/22 Doe v. White CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JOHN DOE, 2d Civil No. B313836
(Super. Ct. No. 20CV-0418)
Plaintiff and Appellant, (San Luis Obispo County)

v.

TIMOTHY P. WHITE et al.,

Defendants and Respondents.

Jane Roe accused John Doe of sexual misconduct while the
two were students at California Polytechnic State University–
San Luis Obispo (CalPoly). A hearing officer determined that the
evidence supported Jane’s accusation, and recommended John’s
expulsion. CalPoly administrators agreed with the
recommendation and expelled John.
John challenged CalPoly’s decision in a petition for writ of
administrative mandate (Code Civ. Proc., § 1094.5), arguing that
he did not receive a fair hearing and that substantial evidence
did not support the hearing officer’s findings. The trial court
denied John’s petition. On appeal from the judgment, John
contends: (1) CalPoly did not abide by its policies and procedures
for adjudicating sexual misconduct allegations, (2) he did not
receive a fair hearing, (3) substantial evidence does not support
the hearing officer’s findings, and (4) expulsion was an overly
harsh sanction. We affirm.
FACTUAL AND PROCEDURAL HISTORY
CalPoly’s sexual misconduct policies and procedures
In 2016, California State University (CalState) adopted
Executive Order 1097 (2016 E.O. 1097). It sets forth the policies
and procedures CalPoly employs to investigate and adjudicate
sexual misconduct allegations. The substantive policy provisions
of 2016 E.O. 1097 prohibit sexual misconduct of any kind.
Engaging in sexual activity without obtaining affirmative consent
constitutes sexual misconduct.
2016 E.O. 1097 defines “affirmative consent” as an
“informed, affirmative, conscious, voluntary, and mutual
agreement to engage in sexual activity.” Silence does not
constitute affirmative consent. A person who cannot understand
the fact or nature of sexual activity because they are under the
influence of drugs or alcohol cannot provide affirmative consent.
A belief that the other person consented to sexual activity does
not excuse sexual misconduct unless the student took reasonable
steps to determine that the other person affirmatively consented.
CalState officials revised Executive Order 1097 in 2019
(2019 E.O. 1097). Under the revised order, sexual misconduct is
determined under the substantive policy in effect at the time of
the incident. The procedures set out in 2019 E.O. 1097 are still
used to resolve the complaint.
If CalPoly officials receive a sexual misconduct complaint,
2019 E.O. 1097 requires an investigation, which may result in a

2
hearing. A hearing officer must apply the preponderance of the
evidence standard to determine whether the accused student
committed sexual misconduct. If a violation is found, the officer
proposes an appropriate sanction, which is sent to the president
of CalPoly.
The parties are notified of the hearing officer’s decision and
proposed sanction, and informed of their rights to appeal. A
party may appeal the decision on the grounds that the decision is
not supported by the evidence, that procedural errors affected the
outcome of the hearing, or that there is new evidence, not
reasonably available at the time of the hearing, that would have
affected the decision. A party may appeal a sanction as an abuse
of discretion.
Jane accuses John of sexual misconduct
Jane filed a complaint alleging that John had engaged in
sexual intercourse with her without her affirmative consent.
Jane told the investigator that she took an Uber to a bar crawl in
downtown San Luis Obispo around 7:00 a.m. on March 17, 2018.
Before leaving she took medication and drank four or five shots of
vodka mixed with cranberry juice. She recalled arriving
downtown, but then blacked out. She went home about 30
minutes later.
Later that morning, John knocked on the door to Jane’s
apartment. Jane drank two shots of vodka and a beer with John.
She then blacked out again.
Jane woke up around 5:00 a.m. the next day. She had cuts
on her face and bruises on her neck. She had vaginal pain and
was not wearing underwear. She sent text messages to her
mother and a friend, M.K., describing what she remembered from
the previous day. She also sent them pictures of her injuries.

3
 Jane went to the hospital and told the staff that she had
been sexually assaulted. A police officer arrived and escorted her
to a sexual assault response team (SART) exam. Jane told the
officer that she thought that a person who had been stalking her
(not John Doe) might have assaulted her.
After police told Jane that her alleged stalker had not
assaulted her, Jane sent a text message to John: “I’m still trying
to piece together what happened to me on St. Patrick’s Day[.]
Could you tell me what you remember?” When the two met in
person, John told Jane that they had had sex.
The next day, John and Jane exchanged a series of text
messages:

“John: How are you feeling?

“Jane: Not well. That wasn’t ok. I was way too gone
to consent that should have been clear.

“John: I understand that and I never meant to do
that. I was way beyond any ability to make
good decisions and I am sorry. I messed up, is
there any way I can help make it right?

“Jane: No. You fucked up big time.

“John: You are right I screwed up royally.

“Jane: It was sexual assault. You do understand
that right?

“John: Yes, I very much understand that it was
sexual assault. I was about to ask if I could
call you to ask you something. It will
probably save a massive amount of time

4
 rather than letting this drag out any longer
than it already has.”

John denies Jane’s allegations
John, accompanied by an attorney advisor, met with the
investigator in November. At the meeting, John said that he
would only make a statement and would not answer any
questions.
John denied that he had sexual intercourse with Jane
without her consent and denied that he bruised her face and
neck. He said that he went to Jane’s apartment at approximately
11:15 a.m. on March 17. When Jane opened the door, she had a
bloody nose and cut lip. She said someone had hit her at the bar
crawl she had attended earlier that morning.
John told the investigator that he was following the
training he received at CalPoly’s disability resource center (DRC)
when he replied to Jane’s text messages about the alleged
incident. His training taught him the value of sympathizing with
and affirming a victim’s feelings.
John said that he had no witnesses to present because no
one other than he and Jane witnessed their interactions on
March 17.
Additional witness interviews
The investigator interviewed three additional witnesses:
R.T., Jane’s then-roommate; L.I., Jane’s friend; and D.H., the
director of the CalPoly DRC.
R.T. did not recall much about March 17. She only
remembered that Jane told her that she was trying to keep
someone out of their apartment.
L.I. said that she received a picture of Jane covered in
bruises on March 18. Jane was “‘freaked out’” and thought she

5
had been raped. The last thing Jane said she remembered was
drinking a shot of vodka with John at her apartment.
D.H. told the investigator “that the DRC did not have [a]
specified protocol or guidelines for ‘student[-]on[-]student]’
interactions.” But “when presented with a student in emotional
distress, their process would be to affirm the student’s feelings,
de-escalate the situation, make sure the student [feels] safe, and
then coordinate with appropriate resources to ensure that the
student receive[s] accommodations and/or counseling, if needed.”
The investigator’s reports
In January 2019, the investigator sent Jane and John a
preliminary report identifying the evidence that had been
gathered. The report noted that Jane had texted her mother and
M.K. after the alleged incident with John, but the investigator
concluded it was not necessary to interview either of them
because neither witnessed the incident. Additionally, the
investigator interviewed L.I., who spoke to Jane around the same
time Jane reached out to her mother and M.K.
The preliminary report said that Jane had copies of her
SART exam and police report. The investigator told Jane that
they would need to be provided to John if they were to be
considered in the investigation. Jane elected not to have the
investigator consider them.
The investigator’s report included copies of the first six
pages of the 12-page summary of Jane’s hospital visit. Jane said
that she did not have the remaining six pages. She believed
those pages contained only follow-up instructions.
The investigator told Jane and John that they could
provide written responses to the preliminary report or meet with
her to discuss it. She also said that they could propose questions

6
for each other. Both parties opted to meet with the investigator
in person.
During her meeting with the investigator, Jane did not
offer additional information, but did propose questions for John.
John similarly did not offer any additional information, but did
respond to some of Jane’s questions: He said that no one else was
present when he arrived at Jane’s apartment. Jane appeared
happy to see him. He knew that Jane had been drinking from
text messages she had sent, but he did not know how much. He
and Jane talked and drank alcohol until Jane fell asleep around
3:00 p.m. Jane woke up about two hours later and escorted John
out of her apartment.
John refused to answer questions about any sexual activity
with Jane. He did not propose any questions for Jane, and did
not ask the investigator to interview additional witnesses or
obtain additional evidence.
In April, the investigator told Jane and John that CalState
had recently adopted 2019 E.O. 1097 and that CalPoly’s
investigation would proceed under the new policies and
procedures. She provided them with copies of the new
procedures. The investigator issued her final investigation report
later that month, and provided copies to Jane, John, and the
hearing officer.
The hearing
A hearing on Jane’s complaint was held in June 2019. A
retired justice of the Pennsylvania Supreme Court presided as
the hearing officer. The attorney who advised John during the
investigation served as his advisor during the hearing.
Prior to proceeding, the hearing officer confirmed that Jane
and John were familiar with 2019 E.O. 1097, that they had

7
reviewed the preliminary report, and that they had had an
opportunity to respond to it. She also confirmed that both she
and the parties had received copies of the final investigation
report. She then explained the process for questioning witnesses.
John submitted a list of proposed questions for the hearing
officer to ask Jane and other witnesses. He submitted additional
questions at the hearing. The hearing officer asked all of the
questions John submitted.
John asked the hearing officer to call D.M., his supervisor
at the DRC, as a witness. The hearing officer allowed D.M. to
testify.
John also asked the hearing officer to call D.H. as a
witness. The hearing officer denied John’s request because
D.H.’s testimony would be duplicative of D.M.’s and because
John’s request was untimely.
Jane asked that three witnesses be permitted to testify:
D.R., L.I., and T.D. John objected to all three proposed
witnesses. The hearing officer allowed L.I. to testify, but did not
allow testimony from D.R. or T.D.
John objected to any reference to Jane’s SART examination
or any police report. The hearing officer replied that “nothing
from the [SART examination] was introduced” and that “neither
the examination nor the police report was used during the
hearing or relied [on] . . . in any way.”
During the hearing John said that his interactions with
Jane were mutual, reciprocal, respectful, and consensual. His
text messages to Jane were not admissions of sexual misconduct;
he was simply affirming Jane’s emotional distress as he had been
trained to do at the DRC.

8
 D.M. said that she had worked at the DRC since 1994. She
had supervised John for three years and had provided his
training. D.M. said that John was a test proctor and technology
lead. His positions did not involve student intake duties, and his
training did not include the handling of emotional distress.
The decision and sanction
The hearing officer concluded that it was more likely than
not that John engaged in sexual intercourse with Jane without
her affirmative consent. Jane was more credible than John based
on the plausibility of her account, the corroborating evidence, her
demeanor while testifying, and the consistency of her testimony.
While she “was unable to remember [all of] the details of what
had occurred . . . her demeanor in relating what she could
remember was unhesitant. Further, she admitted to her prior
drinking before [John] arrived[,] and honestly related that her
facial cuts and bruises preceded [his] arrival.” In contrast, John
was “tentative in his testimony[,] and provided a wholly
implausible story regarding his confession to her that he had
sexually assaulted her.” Moreover, there was “overwhelming”
evidence that Jane and John engaged in sexual activity—
including John’s text messages—but he refused to acknowledge
as much.
The hearing officer recommended that CalPoly expel John,
a penalty consistent with the sanctions imposed in similar
situations. John committed a serious offense—even after he had
undergone four years of sexual misconduct prevention
trainings—and he never accepted responsibility for his actions.
CalPoly agreed with the hearing officer’s recommendation
and expelled John. John appealed, but his appeal was denied.
His petition for writ of mandate was also denied.

9
 DISCUSSION
Scope and standard of review
A student determined to have committed sexual
misconduct may challenge the outcome of the university’s
disciplinary proceedings in a petition for writ of administrative
mandate. (See, e.g., Doe v. Westmont College (2019) 34
Cal.App.5th 622, 634 (Westmont).) The scope of our review from
the judgment on the petition is the same as that of the trial court.
(Ibid.) We review the university’s decision directly, and
independently determine whether the university followed its own
policies and procedures and whether the student received a fair
hearing. (Id. at pp. 634-635.) We review the substantive decision
for substantial evidence (Doe v. University of Southern California
(2018) 29 Cal.App.5th 1212, 1231 (USC)) “in the light of the
whole record” (Code Civ. Proc., § 1094.5, subd. (c)), and the
sanction imposed for abuse of discretion (Doe v. Regents of
University of California (2016) 5 Cal.App.5th 1055, 1106
(UCSD)).
CalPoly followed its sexual misconduct policies and procedures
John first contends the judgment should be reversed
because CalPoly failed to follow its procedures for collecting
evidence and ruling on objections to witnesses. (Cf. Westmont,
supra, 34 Cal.App.5th at p. 635 [university must “comply with its
own policies and procedures” in sexual misconduct investigation
and adjudication].) We disagree.
John claims 2019 E.O. 1097 required the investigator to
“collect and consider all of the evidence,” including Jane’s SART
exam, the report she made to police, the receipts from the Uber
rides she took on March 17, and the missing six pages of her
hospital visit summary. John misreads 2019 E.O. 1097’s

10
requirements. 2019 E.O. 1097 did not require the investigator to
“collect and consider all of the evidence,” as John claims, but
instead required her to take “reasonable steps to gather all
relevant evidence.” (Italics added.) 2019 E.O. 1097 also
permitted the investigator to decline to gather evidence if it was
duplicative or irrelevant, or if obtaining it would have been
unduly burdensome.
Here, the investigator asked Jane—the only person who
could provide her SART exam and police report—to provide those
documents. Jane declined to do so. John argues the investigator
should have taken additional “reasonable steps” to obtain those
documents. What would those steps be? 2019 E.O. 1097 does not
give investigators subpoena power.
As to Jane’s Uber receipts, the investigator was not
required to obtain those because they were not relevant: It is
uncontested that Jane had returned from the pub crawl and was
at her apartment when John arrived.
The investigator was similarly not required to obtain the
final six pages of Jane’s hospital visit summary: John has not
established their relevance because they contained only follow-up
instructions. They were also no longer in Jane’s possession,
rendering them unduly burdensome to obtain. The investigator
thus complied with 2019 E.O. 1097’s requirements for gathering
evidence.
John next complains that the hearing officer failed to rule
on his objections to witnesses D.R., L.I., and T.D. at least one
working day before the hearing, as required. But John again
misreads 2019 E.O. 1097’s requirements. Three working days
prior to the hearing the parties are required to submit “objections
to, or questions about, the witness list” and “requests for

11
permission to participate in the hearing remotely or out of the
physical presence of the other [p]arty.” Then, no later than one
working day before the hearing, the hearing officer is required to
“resolve all pending requests regarding participation at the
hearing.” (Italics added.) The one-day deadline applies to the
resolution of participation requests, not objections to witnesses.
But even if the deadline did apply to witnesses, John has
not shown that the hearing officer’s purported delay harmed him
in any way. Two of the witnesses John objected to did not testify.
The third, L.I., was questioned by the investigator, and a
summary of the information she would testify to at the hearing
was given to John in advance. He then submitted questions for
L.I., all of which were asked at the hearing. “In this
circumstance, John cannot show prejudice.” (Doe v. Regents of
University of California (2021) 70 Cal.App.5th 521, 539.)
John also suggests that the hearing officer should not have
permitted L.I. to testify because she was biased against him, but
he does not explain how admitting her testimony violated 2019
E.O. 1097 in any way. Regardless, credibility determinations are
made by the trier of fact, not this court. (People v. Boyer (2006)
38 Cal.4th 412, 480.)
John received a fair hearing
Next, John contends he did not receive a fair hearing
because CalPoly withheld evidence, prevented him from calling
witnesses, and disallowed cross-examination. We reject each of
these contentions.
“A [university’s] procedure for investigating and
adjudicating student sexual misconduct allegations is not
analogous to a criminal proceeding.” (Westmont, supra, 34
Cal.App.5th at p. 634.) “The [university] must nevertheless give

12
the accused student notice of the allegations against [them] and a
fair hearing at which [they] may attempt to rebut those
allegations.” (Ibid.) But other than that, the requirements for a
fair hearing “are ‘“flexible” and entail no “rigid procedure.”’”
(Ibid.) “‘[N]o particular form of student disciplinary hearing is
required under California law.’” (Id. at p. 635.)
“Recent cases have described the contours of what a fair
hearing requires where, as here, the case turns on witness
credibility.” (Westmont, supra, 34 Cal.App.5th at p. 635.) The
accused student is entitled to “a hearing before a neutral
adjudicatory body.” (Ibid.) The student must have access to the
evidence (Knight v. South Orange Community College District
(2021) 60 Cal.App.5th 854, 866), and “must be permitted to
respond to” it at the hearing (Westmont, at p. 635). They “must
also have ‘“a full opportunity to present [their] defenses.”’”
(Knight, at p. 866.)
“The [university] must provide the accused student with
the names of witnesses and the facts to which each testifies.”
(Westmont, supra, 34 Cal.App.5th at p. 635.) These witnesses
must appear at the hearing in some form, though “[i]t is not
necessary to place the alleged victim and the accused in the same
room.” (Ibid.) “The accused must be able to pose questions to the
witnesses in some manner, either directly or indirectly, such as
through the adjudicatory body.” (Ibid.) Direct cross-examination
is not required. (Id. at p. 638.)
1. Exculpatory evidence
John first claims CalPoly denied him a fair hearing by
withholding purportedly exculpatory evidence: the police report
filed by Jane, her SART exam, the missing six pages of her
hospital visit summary, and her Uber receipts. (Cf. Doe v.

13
University of Southern California (2016) 246 Cal.App.4th 221,
247 [adjudicatory body may not rely on evidence not disclosed to
the accused].) But the existence of each of these items was
disclosed to John in the investigator’s preliminary report. Had he
actually considered them exculpatory, John could have requested
that the investigator obtain the items from Jane or ask her about
them. John did not do so. His claim that CalPoly withheld
exculpatory evidence is accordingly forfeited. (Franz v. Board of
Medical Quality Assurance (1982) 31 Cal.3d 124, 143 (Franz).)
It also lacks merit. The existence of the police report,
SART exam, hospital visit summary, and Uber receipts were all
disclosed to John in the preliminary report. The preliminary
report also stated that Jane declined to produce the police report
and SART exam and that those items would “not be considered
for this investigation.” In her decision, the hearing officer
similarly stated that she did not consider these items. She also
did not consider the final six pages of Jane’s hospital visit
summary, as Jane had discarded them. And the Uber receipts
were irrelevant to any disputed material issue. There was thus
no intentional withholding of exculpatory evidence that was
considered by the hearing officer but not provided to John.
2. Exculpatory witnesses
John next claims CalPoly prevented him from calling
exculpatory witnesses: Jane’s Uber driver(s); her mother; her
friend, M.K.; and his boss at the DRC, D.H. But John does not
identify what, if any, information the Uber driver(s) might have
had that would be relevant. Claims made without legal analysis
are forfeited. (Golden Drugs Co., Inc. v. Maxwell-Jolly (2009) 179
Cal.App.4th 1455, 1472 (Golden Drugs).)

14
 The preliminary report identified Jane’s mother and M.K.
as potential witnesses, and indicated what Jane had disclosed to
them. The report also stated that the investigator did not
interview them because they did not witness what occurred
between Jane and John and because any information they might
have had would have been duplicative of that obtained from L.I.
John, after receiving a copy of the report, did not ask the
investigator to interview them, nor did he ask that they testify at
his hearing. His belated claim that they might have provided
exculpatory evidence is therefore forfeited. (Franz, supra, 31
Cal.3d at p. 143.)
The hearing officer declined to have D.H. testify because
her testimony would have been duplicative of D.M.’s. John’s
request to have D.H. testify was also untimely. John ignores
both of these bases for the hearing officer’s decision to exclude
D.H. as a witness, and provides no analysis for why that decision
was in error. His claim is forfeited. (Golden Drugs, supra, 179
Cal.App.4th at p. 1472.)
3. Cross-examination
John claims he was denied a fair hearing because he did
not have the opportunity to cross-examine witnesses. John
misunderstands what the law requires.
As this court has explained previously, “[a] student accused
of sexual misconduct is not entitled to directly cross-examine the
alleged victim or other witnesses who testify at a sexual
misconduct hearing.” (Westmont, supra, 34 Cal.App.5th at p.
638, italics added.) What is instead required is that the accused
student be permitted to pose questions indirectly, such as
through the hearing officer. (Id. at p. 639.) Numerous courts
have recognized the adequacy of conducting cross-examination

15
through this procedure (see, e.g., ibid.; USC, supra, 29
Cal.App.5th at pp. 1237-1238, UCSD, supra, 5 Cal.App.5th at p.
1084), and the Legislature has since enshrined it into state law
(Ed. Code, § 66281.8, subd. (b)(4)(A)(viii)(I) & (III)). Because that
procedure was followed here, John received a fair hearing.
Substantial evidence supports the hearing officer’s findings
John next contends substantial evidence does not support
the hearing officer’s findings that: (1) Jane was credible, (2) Jane
was incapacitated due to drugs or alcohol, (3) John knew or
should have known that Jane was incapacitated, and (4) John
and Jane had sexual intercourse. But John did not challenge
Jane’s credibility in the trial court proceedings below. That
contention is forfeited. (Rand v. Board of Psychology (2012) 206
Cal.App.4th 565, 587 (Rand).) The others lack merit.
When reviewing the hearing officer’s decision, we do not
weigh the evidence, resolve conflicts therein, or consider the
credibility of witnesses. (UCSD, supra, 5 Cal.App.5th at p. 1073.)
Instead, we accept all evidence that supports the decision, draw
all inferences in support of it, and disregard any contrary
evidence. (Id. at p. 1074.) We presume the decision was correct,
and will not substitute our own judgment for it so long as it could
have been made by a reasonable person. (Id. at p. 1073.) It is
“‘[o]nly if no reasonable person could reach the conclusion
reached by the [officer], based on the entire record before [her],
[that we would] conclude that the . . . findings are not supported
by substantial evidence.’ [Citations.]” (Ibid.)
Substantial evidence supports the findings that Jane was
incapacitated and unable to affirmatively consent when she and
John engaged in sexual intercourse. On the morning of the
incident, Jane had four or five shots of alcohol before going to a

16
pub crawl. She was so intoxicated that she blacked out on the
ride downtown. She fell asleep after returning home, waking up
when John knocked on the door. When she opened it, John
noticed that she looked disheveled and had cuts on her lip and a
bloody nose. Jane then drank two more shots of alcohol and a
glass of beer with John before blacking out again. After she had
fallen asleep, her breathing was so labored that John felt the
need to check her pulse. Such evidence overwhelmingly supports
the hearing officer’s finding that Jane was incapacitated.
The evidence also supports the finding that John knew or
should have known Jane was incapacitated and unable to
affirmatively consent to sexual intercourse. When he arrived at
her apartment, John knew that Jane had already been drinking
alcohol at a bar crawl. The two of them then drank more alcohol
together. More significantly, John admitted he knew Jane was
incapacitated: In a subsequent text message exchange, John
admitted that he understood that Jane was “way too gone to
consent.” That alone is substantial evidence in support of the
hearing officer’s finding.
We reach the same conclusion regarding John’s claimed
lack of evidence that he and Jane engaged in sexual intercourse.
When she awoke on March 18, Jane’s vagina was sore and her
underwear were missing. She was “‘freaked out’” and told L.I.
that she thought she had been raped. She later asked John about
what had happened the day before, and he said that they had had
sex. He then admitted, in a text message, that he had sexually
assaulted Jane. Substantial evidence thus supports the finding
that John and Jane had sexual intercourse.
The expulsion sanction was not overly harsh
Finally, John contends the decision to expel him from

17
CalPoly was overly harsh. But John did not raise this contention
in the proceedings below. It is forfeited. (Rand, supra, 206
Cal.App.4th at p. 587.)
It also fails on the merits. We review CalPoly’s decision to
expel John for abuse of discretion. (UCSD, supra, 5 Cal.App.5th
at p. 1106.) Pursuant to this standard of review, we “cannot
‘substitute [our] discretion for that of the [university] concerning
the degree of punishment imposed.’” (Ibid.) “‘It is only in the
exceptional case, when it is shown that reasonable minds cannot
differ on the propriety of the penalty, that an abuse of discretion
is shown.’” (Ibid.)
Here, John committed a serious offense: He engaged in
sexual intercourse with a person he knew or should have known
was incapacitated and unable to affirmatively consent. John was
a senior when the incident occurred, and had undertaken four
years of sexual misconduct prevention trainings. And while he
had no prior allegations of misconduct, he never admitted
responsibility for what occurred with Jane. Ordering John’s
expulsion—a penalty consistent with the sanctions imposed
under 2019 E.O. 1097 in similar situations—was not an abuse of
discretion. (Cf. UCSD, supra, 5 Cal.App.5th at pp. 1106-1107
[upholding suspension of one year plus one quarter where
student digitally penetrated another’s vagina without her consent
and never took responsibility for his actions].)

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 DISPOSITION
The judgment is affirmed. Respondents shall recover their
costs on appeal.
NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.

 Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

19
 Tana L. Coates, Judge

Superior Court County of San Luis Obispo

______________________________

Hathaway Parker, Mark M. Hathaway and Jenna E.
Parker for Plaintiff and Appellant.
California State University Office of General Counsel,
Susan Westover and William C. Hsu for Defendants and
Respondents.