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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JOHN DOE,

 Plaintiff and Appellant,

v.

TIMOTHY P. WHITE et al.,

 Defendants and Respondents.

2d Civil No. B313836

(Super. Ct. No. 20CV-0418)

(San Luis Obispo County)

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 
2

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 
3

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. 
4

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 
5

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 
6

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 
7

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 
8

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. 
9

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. 
10

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 
11

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 
12

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 
13

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.
14

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).)
15

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 
16

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 
17

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 
18

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].)
19

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.
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.