Filed 8/29/22 Doe v. White C A2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 Obis po (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 wri t 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, Joh n2

contends: (1) CalPoly did not abide by its policies and procedures for adjudicat ing 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 HISTOR Y 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 polic ies and procedure s CalPoly employs to investigate and adjudicate
sexual misconduct allegations

. The substantive policy provisions
of 2016 E

. O

. 1097 prohibit s exual m isconduct of any kind. Engaging in sexual activity without obtaining a ffirmative c onsent constitutes s exual m isconduct. 2016 E.O. 1097 defines “a ffirmative c onsent ” as an “informed, affirmative, conscious, voluntary, and mutual agreement to engage in sexual activity.” Silence does not
constitute a ffirmative c onsent. A person who cannot understand the fact o r nature of sexual activity because they are under the influence of drugs or alcohol cannot provid e a ffirmative c onsent.
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 inc ident. The pro cedure s 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 a3

hearing. A hearing officer must apply t he 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 presiden t 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, o r 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 tha t 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 Ma r ch 17 , 2018

. Before leaving she took medication and dran k 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., de scribing 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 t eam (SART) exam. Jane told the officer that she thought that a person who had been stalking her (not John Doe) might have a ssault ed her

. After police tol d 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 ar e 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 the re 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 time5 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
i nvestigator 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 th at 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 h e was following the training he received at CalPoly’s disability resource center (DRC) when he replied to Jane’s text messages about the alleged
inciden t. His training taught him the value of sympathizing with and affirming a victim’s feelings.
John sai d 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 she6

had been raped. The last thing Jane said she remembered was
drin king a shot of vodka with John at her apartment. D.H. told the investigator “that the DRC did not have [a] specified protocol or guideli nes 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 app ropriate resources to ensure that the student receive[s] accommodations and/or counseling, if needed.”

The investigat or’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 intervie wed 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 cop ies 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 questions7

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 ad ditional 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 n ot 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 investig ation would proceed under the new policies and procedures. She provided the m 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 hea ring 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 p roceeding , the hearing officer confirmed that Jane and John were familiar with 2019 E.O. 1097, that they had8

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 recei ved 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 hearin g. 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 th ree 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 exam ination

or any police report. The hearing officer replied that “nothing from the [SART examination ] was introduced” and that “neither
the exam ination 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 conse nsual. 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 thre e 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
T he 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
demean or 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 befo re [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 h e had undergone four years of sexual misconduct prevention training s

— 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 subs tantive decision for substantial evidence ( Doe v. U niversity 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 misrea ds 2019 E.O. 1097’s11

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 requir ed 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 J ohn again
mis read s 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 for12

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 deadlin e 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 t his 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 do es 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 co ntends 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 studen t sexual misconduct allegations is not analogous to a criminal proceeding.” ( Westmont

, supra , 34 Cal.App.5th at p. 634.) “ The [university] must nevertheless give13

the accused student notice of the allegations against [ them ] and a fair hearing at which [th ey] 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 Californi a 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 befor e a neutral adjudicatory body.” ( Ibid. ) T he 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). The y “ 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 o r 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 p olice 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,
SA RT exam, hospital visit summary, and Uber receipts were all disclosed to John in the preliminary report. Th e preliminary report also stated that Jane declined to produce the police report
and SART exam and that those items would “not be considered
for thi s 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 irrelev ant 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
excul patory 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 for feited. ( Golden Drugs Co., Inc. v. Maxwell

- Jolly (2009) 179 Cal.App.4th 1455, 1472 ( Golden Drugs ) .)15 T he preliminary report identified Jane’s mother and M.K. as potential witnesses, and indicated what Jane had disclosed to
them. The report also stated th at 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.)
T he hearing officer declin ed to have D.H. testify because
her testimony would have be en 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. J ohn misunderstands what the law require s

. 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. ” ( West mont , 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

- examination16

through this procedure (see, e.g., ibid. ; USC

, supra , 29 Cal.App.5th at p p . 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 ).) T he others lack merit. When reviewing the hearing officer’s deci sion , we do not weigh the evidence, resolve conflicts therein, or consider the
credi bility 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 [he r]

, [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 i n sexual intercourse. On the morning of the incident, Jane had four or five shots of alcohol before going to a17

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 w ith John before blacking out again. A fter she had fallen asleep, her brea thing 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 incapaci tated 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 l ater 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 san c tion was not overly harsh Finally, John contends the decision to expel him from18

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. ) “‘I t 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 offen se: 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
dis cretion. (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 judgmen t 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, Secon d 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

______________________________

Hathaw ay 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.