Filed 3/14/22 Hiraishi v. DeLeon 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

has not been certified for publication or ordered published for purposes of rule 8.1115.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

JOI HIRAISHI,

 Plaintiff and Appellant,

v.

PENELOPE DELEON et al.,

 Defendants and Respondents.

2d Civil No. B310395

(Super. Ct. No. 56-2019-

00533401-CU-OE-VTA)

(Ventura County)

Joi Hiraishi appeals from the judgment after the trial 

court sustained a demurrer to her complaint against Kim 

Stephenson and Penelope DeLeon (collectively, Respondents) 

without granting leave to amend. She contends the court erred 

when it concluded that she failed to state claims for: (1) gender 

harassment against Stephenson, and (2) aiding and abetting

against DeLeon. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Hiraishi’s complaints about her workload and schedule

Adolfo Camarillo High School (ACHS) is part of the 

Oxnard Union High School District (OUHSD). During the times
2

relevant to this appeal, Hiraishi taught science classes at ACHS, 

Stephenson was the ACHS principal, and DeLeon was the 

OUHSD superintendent.

In February 2017, Hiraishi complained to DeLeon 

that Stephenson had subjected her to disparate treatment in the 

scheduling of classes, evaluation of students, and provision of 

administrative support. Specifically, Hiraishi claimed that a 

male teacher in her department had a more favorable schedule

and fewer assigned students. She claimed that Stephenson 

authorized the transfer of problematic students from male 

teachers’ classes to her classes but declined to approve reciprocal 

transfers. She claimed that Stephenson refused to hire her as a 

soccer coach, instead hiring a male teacher with less experience. 

And she claimed that Stephenson refused various requests (e.g., 

for a laboratory assistant, to pay for various trainings, for a key 

to the faculty workroom) despite approving similar requests from 

her male counterparts.

DeLeon told Hiraishi that adjustments to ACHS’s 

science program were underway. She agreed to meet with 

Hiraishi to discuss her concerns. Hiraishi did not schedule a 

follow-up meeting.

During the 2017-2018 school year, Hiraishi again 

complained about disparate treatment and “inequities in the 

master schedule.” She alleged that many of the problems she 

previously identified had continued. DeLeon promised to review

the complaint with Stephenson.

In April 2018, Hiraishi asked DeLeon “what had been 

done to remedy the issues” she had raised. DeLeon said that “she 

had personally reviewed the numbers” for every biology class at 

ACHS and concluded that “there was nothing inappropriate” 
3

about the schedule or workload allocation. After Hiraishi 

submitted another complaint, DeLeon explained that there was a 

“‘tried and true process’ of creating a master schedule based on 

collaborative communication through department chairs and 

academy coordinators.”

In May, the chair of the ACHS science department 

told Hiraishi that she would be assigned a full-time teaching 

schedule for the 2018-2019 school year. The next day, however, 

Stephenson told Hiraishi that she would only be offered a 

40-percent schedule due to declining enrollment at ACHS. No 

male teacher had a similar schedule reduction. Stephenson said 

that Hiraishi could continue her full-time employment at the 

school if she agreed to teach chemistry classes in addition to 

biology. Alternatively, she could split her time teaching biology 

at ACHS and another OUHSD high school.

Hiraishi declined Stephenson’s offers. She declined 

the first offer because she did not believe she had enough time to 

obtain a chemistry teaching credential. She declined the second 

because an alleged sexual harasser lived near the other school. 

Hiraishi then complained to DeLeon and the OUHSD Board of 

Trustees (Board) that Stephenson had retaliated against her for 

her earlier complaints. She demanded that she retain full-time 

employment at ACHS, and urged OUHSD officials to adjust the

master schedule.

Over the ensuing weeks, Hiraishi proposed several 

alternatives that would allow her to retain full-time employment 

at ACHS. Stephenson rejected each alternative. Hiraishi then 

told DeLeon that Stephenson was “‘intentionally making it 

impossible’” for her to work at ACHS and that Stephenson’s 

actions seemed “‘very retaliatory.’” She nevertheless agreed to 
4

split her time teaching at ACHS and another school for the 2018-

2019 school year. In return, Hiraishi requested full-time 

employment at ACHS in 2019-2020. When Stephenson declined 

this request, Hiraishi lodged a complaint with the Board, which 

forwarded it to DeLeon. DeLeon told Hiraishi that she had 

researched her complaint but took no additional action.

In the 2018-2019 school year, Hiraishi complained 

that the “daily lab set up and take down” for her classes was “too 

physically demanding,” that she should not have to share a 

classroom, and that she should receive help transporting 

materials between schools. She filed a “work-related stress 

complaint” and requested a leave of absence.

Hiraishi went on family and medical leave in March 

2019. While on leave, she filed another complaint after 

substitute teachers requested information on lesson plans and 

materials for her classes, claiming that being asked to respond to 

such requests while on leave was “further retaliation.” After her 

leave ended, she filed complaints with the state Department of 

Fair Employment and Housing and the federal Equal 

Employment Opportunity Commission. She then took a

“sabbatical leave of absence.”

The initial complaint

Hiraishi sued Respondents, asserting claims of 

gender harassment against Stephenson and aiding and abetting 

against DeLeon.1 Respondents demurred. They argued that 

Hiraishi failed to state a claim for gender harassment because 

the allegations pertained to official employment actions 

1 The complaint also asserted claims of retaliation and 

failure to prevent retaliation and harassment against OUHSD. 

Those claims are not part of this appeal.
5

Stephenson took on behalf of ACHS. They argued that Hiraishi 

failed to state a claim for aiding and abetting because she did not 

adequately plead gender harassment. Even if she did, DeLeon 

could not be personally liable for failing to prevent it. The trial 

court agreed with Respondents and sustained their demurrer. It 

granted Hiraishi leave to amend her complaint.

The first amended complaint

Hiraishi’s first amended complaint added allegations 

that, in 2016, Stephenson: (1) denied her request for a laboratory 

assistant even though she granted a male teacher’s request, (2)

increased her workload by assigning more students to her classes 

than to the classes of male teachers, (3) transferred problem 

students from the classes of male teachers to her classes, (4) 

hired a male teacher instead of her for an open coaching position, 

and (5) provided support and equipment to male teachers but 

refused to provide it for her. Hiraishi also alleged that, in 2017 

and 2018, Stephenson: (6) limited her to one assistant even 

though two male teachers had multiple assistants, (7) offered 

partial employment to her instead of to male science teachers, 

and (8) failed to hire her for positions that went instead to 

less-qualified male teachers.

As to DeLeon, the amended complaint included 

additional details about the agreed-upon meeting that Hiraishi 

did not schedule in early 2017 and about DeLeon’s review of the 

enrollment numbers and master schedule. It also included 

additional quotes from Hiraishi’s February 2017 communications 

with DeLeon.

Respondents again demurred, raising the same 

substantive arguments they had raised previously. The trial 
6

court sustained their demurrer but granted Hiraishi leave to 

amend.

The second amended complaint

In addition to the allegations included in the previous

complaints, Hiraishi’s second amended complaint: (1) detailed 

the number of students in her classes and male teachers’ classes,

(2) alleged that Stephenson did not provide her with a key to the 

faculty workroom but provided one to male teachers, (3) asserted 

that ACHS once refused to pay for a substitute teacher, (4) 

asserted that a male teacher had greater than full-time 

employment during the 2018-2019 school year, (5) added more 

quotes from her correspondences with DeLeon and the Board, 

and (6) alleged that neither DeLeon nor the Board initiated an 

investigation in response to her complaints that Stephenson had 

retaliated against her.

Respondents again demurred, and requested that the 

demurrer be sustained without leave to amend. The trial court 

granted Respondents’ request. It then entered a judgment of 

dismissal in Respondent’s favor.

DISCUSSION

Hiraishi contends the trial court erred when it 

sustained Respondents’ demurrer because she sufficiently pled 

her gender harassment claim. We disagree.

Standard of review

When a court sustains a demurrer, we independently

determine whether the plaintiff’s complaint states a cause

of action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) If 

the cause of action is based in statute, the facts supporting each 

statutory requirement must be specifically pled. (Fisher v. San

Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) We 
7

deem true “‘all material facts properly [pled in the complaint], 

but not contentions, deductions[,] or conclusions of fact or law.’ 

[Citation.]” (Blank, at p. 318.) We reasonably interpret the 

complaint, “reading it as a whole and its parts in their context.” 

(Ibid.) When the court denies leave to amend, we decide whether 

the plaintiff has shown a “reasonable possibility” that the defects 

in the complaint can be cured by amendment. (Ibid.) The burden 

of proving such a possibility is “squarely on the plaintiff.” (Ibid.)

Governing law

The California Fair Employment and Housing Act 

(FEHA) prohibits a variety of conduct in the workplace, including 

gender discrimination and gender harassment. (See Gov. Code, 

§ 12940, subds. (a) & (j)(1).) Discrimination focuses on “explicit

changes in the ‘terms, conditions, or privileges of employment’

[citation]; that is, changes involving some official action taken by

the employer.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 

706 (Roby), italics omitted.) Such actions may include “hiring, 

firing, failing to promote, adverse job assignment, significant

change in compensation or benefits, or official disciplinary 

action.” (Ibid.) 

“By contrast, harassment often does not involve any 

official exercise of delegated power on behalf of the employer,”

but instead “focuses on situations in which the social

environment of the workplace becomes intolerable because the 

harassment . . . communicates an offensive message to the 

harassed employee.” (Roby, supra, 47 Cal.4th at p. 706, italics 

omitted.) It “‘consists of conduct outside the scope of necessary 

job performance, conduct presumably engaged in for personal 

gratification, because of meanness or bigotry, or for other 
8

personal motives.’” (Reno v. Baird (1998) 18 Cal.4th 640, 646 

(Reno).) 

As we stated in Accardi v. Superior Court (1993) 17 

Cal.App.4th 341, 348 (Accardi), a hostile work environment can 

give rise to a gender harassment claim. Such a claim requires a

plaintiff to show that they were forced to endure conduct that 

was unwelcome, based on their gender, and “‘“sufficiently severe 

or pervasive to alter the conditions of . . . employment and create 

an abusive work environment.”’” (Lyle v. Warner Brothers

Television Productions (2006) 38 Cal.4th 264, 279.) 

Typically, official employment actions such as “‘hiring 

and firing, job or project assignments, office or work station 

assignments, promotion or demotion, performance evaluations, 

the provision of support, the assignment or nonassignment of 

supervisory functions, deciding who will and who will not attend 

meetings, deciding who will be laid off, and the like’” will not 

provide the evidentiary basis for a hostile work environment 

gender harassment claim. (Reno, supra, 18 Cal.4th at pp. 646-

647.) Such actions “‘may retrospectively be found discriminatory 

if based on improper motives, but in that event the remedies 

provided . . . are those for discrimination, not harassment.’” (Id.

at p. 647.) Sometimes, however,“the hostile message that 

constitutes . . . harassment [may be] conveyed through official 

employment actions.” (Roby, supra, 47 Cal.4th at p. 708.) When 

so conveyed, “evidence that would otherwise be associated with a 

discrimination claim [may] form the basis of a harassment 

claim.” (Ibid.) 

For example, in Miller v. Department of Corrections

(2005) 36 Cal.4th 446 (Miller), the Supreme Court considered

“whether evidence of widespread sexual favoritism in the 
9

workplace could constitute sexual harassment against the 

nonfavored employees.” (Roby, supra, 47 Cal.4th at pp. 707-708.) 

“[T]he favoritism at issue . . . took the form of official employment 

actions, including promotions and favorable job assignments 

given to female employees involved in sexual relationships with a 

particular male supervisor.” (Id. at p. 708.) The court concluded 

that the plaintiffs “nevertheless stated a prima facie case of 

harassment” because the “widespread sexual favoritism [they 

alleged] could convey a ‘demeaning message . . . to female 

employees that they are viewed by management as “sexual 

playthings” or that the way required for women to get ahead in 

the workplace is to engage in sexual conduct with their 

supervisors or the management.’ [Citations.]” (Ibid.) 

Our Supreme Court further explained how evidence 

traditionally associated with a discrimination claim can support a 

harassment claim in Roby, supra, 47 Cal.4th 686. In that case, 

the plaintiff’s harassment claim was based on “hostile social 

interactions in the workplace that affected the workplace 

environment because of the offensive message they conveyed.” 

(Id. at p. 708.) The majority of the acts supporting the claim—a

supervisor’s “demeaning comments . . . about [the plaintiff’s] body 

odor and arm sores, [her] refusal to respond to [the plaintiff’s] 

greetings, [her] demeaning facial expressions and gestures 

toward [the plaintiff], and [her] disparate treatment of [the 

plaintiff] in handing out small gifts”—were “unrelated to [the 

supervisor’s] managerial role, engaged in for her own purposes.” 

(Id. at p. 709.) But other acts were “best characterized as official 

employment actions”: the supervisor’s “shunning of [the plaintiff]

during staff meetings, [the] belittling of [the plaintiff’s] job, and 

[the] reprimand[ing] of [the plaintiff] in front of [her] coworkers.” 
10

(Ibid.) These official acts could “provide evidentiary support for a 

harassment claim by establishing discriminatory animus on the 

part of the [supervisor].” (Ibid.)

Miller, supra, 36 Cal.4th 446 and Roby, supra, 47 

Cal.4th 686 thus make clear that a supervisor’s official 

employment actions can provide the evidentiary basis for a 

hostile work environment gender harassment claim under certain 

limited circumstances. The key is showing that the actions had 

the “secondary effect of communicating a hostile message.” 

(Roby, at p. 709.) “This occurs when the actions establish a 

widespread pattern of bias.” (Ibid.) 

Analysis

Hiraishi fails to establish the requisite pattern here

because she has not pled sufficient facts to show that 

Stephenson’s allegedly offensive conduct was so severe and 

pervasive that it created a hostile work environment. The 

primary allegations in Hiraishi’s complaint fall within several 

broad categories: class size differentials, hiring decisions, 

promotion and demotion, personnel support, and access to 

facilities and equipment. These allegations are best 

characterized as official employment actions. But simply because

Stephenson gave some of Hiraishi’s male colleagues assignments 

and resources that Hiraishi would have preferred does not

establish a claim for hostile work environment gender 

harassment. Where, as here, a plaintiff offers comparative 

allegations of employment actions that disparately affected 

members of different genders, they must show that those actions 

had the “secondary effect of communicating a hostile message.” 

(Roby, supra, 47 Cal.4th at p. 709.) Hiraishi’s complaint does not 

allege that Stephenson’s actions conveyed such a message.
11

Nor did the so-called non-employment-related actions 

Stephenson allegedly took. Hiraishi characterizes several of the 

allegations against Stephenson—denying Hiraishi access to 

faculty-only facilities, lying about the reason for reducing 

Hiraishi’s hours, and saying that she was not required to offer 

Hiraishi classes at ACHS2—as outside the scope of her duties as 

ACHS principal. According to Hiraishi, these non-employmentrelated actions reinforced the offensive message communicated 

by the official employment actions Stephenson allegedly took. 

(Citing Roby, supra, 47 Cal.4th at pp. 708-709.)

Even if we agreed with Hiraishi’s characterization of 

Stephenson’s actions, they would not support her hostile work 

environment gender harassment claim. In her complaint, 

Hiraishi alleges that Stephenson took her purportedly 

non-employment-related actions in response to Hiraishi’s 

complaints: they occurred after Hiraishi criticized Stephenson’s 

investigation and “in retaliation for” Hiraishi’s “earlier 

complaints.” And during the proceedings below Hiraishi 

admitted that she lodged the amended complaint “in the hopes” 

of preventing “a future claim/litigation for retaliatory conduct.” 

(Italics added.) Such retaliatory acts do not constitute gender 

harassment under FEHA. (Brennan v. Townsend & O’Leary

Enterprises, Inc. (2011) 199 Cal.App.4th 1336, 1360-1361; see 

also Lopez v. Routt (2017) 17 Cal.App.5th 1006, 1017 [noting that 

harassment and retaliation claims are “fundamentally 

different”].)

2 Hiraishi also asserts that Stephenson repeatedly broke 

promises to her, but the pages of the record cited do not support 

this assertion.
12

We also reject Hiraishi’s assertion that the “social 

context” in which Stephenson’s alleged conduct occurred supports 

her gender harassment claim. (Cf. Miller, supra, 36 Cal.4th at p.

462 [harassment should be considered in light of “‘context in 

which particular behavior occurs’”].) Initially, we note that 

Hiraishi’s complaint does not describe that context or how 

Stephenson’s conduct within it amounted to harassment. More 

significantly, the conduct Hiraishi describes—Stephenson’s 

decisions to demote Hiraishi, refuse to hire her for 

extracurricular positions, increase her workload, and deny her

administrative support—are all actions one would expect to occur 

in the employment context, in stark contrast to the sexual 

relationships described in Miller. They also contrast with the 

situation described in Accardi, supra, 17 Cal.App.4th at page 350, 

in which we concluded that the plaintiff stated a claim for gender 

harassment based on the “threats, rejection, mockery, application 

of double standards, sexual advances, and intimidation” she 

endured. Such a “well-established pattern of conduct”—conduct 

one would not expect to occur in an employment setting—

“created a hostile work environment.” (Ibid.) 

The trial court thus correctly sustained the demurrer 

to Hiraishi’s gender harassment claim against Stephenson.3 It 

follows that sustaining the demurrer to the aiding and abetting 

claim against DeLeon was also proper. (Reno, supra, 18 Cal.4th 

3 Hiraishi contends only that the facts alleged in the second 

amended complaint are sufficient to state a cause of action for 

gender harassment. She has thus failed to carry her burden of 

showing a reasonable possibility that the defects in her complaint 

can be cured by amendment. (Blank, supra, 39 Cal.3d at p. 318.)
13

at p. 655 [aiding and abetting claim requires prohibited action]; 

see also Gov. Code, § 12940, subd. (i).)

DISPOSITION

The judgment is affirmed. Respondents shall recover 

their costs on appeal.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
Benjamin F. Coats, Judge

Superior Court County of Ventura

______________________________

Tron & Tron, Lanny M. Tron and Terry L. Tron for 

Plaintiff and Appellant. 

Greines, Martin, Stein & Richland, Timothy T. 

Coates, Nadia A. Sarkis; Woo Houska, Maureen M. Houska and 

Carol A. Woo for Defendants and Respondents.