Filed 3 / 14 / 22 Hiraishi v. De L e on 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 sp ecified 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a nd Appellant,

v.

PENELO PE D E LEON 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 comp laint against Kim Stephen son and Penelope DeLeon (collectively, Respondents) without granting leave to amend. She contends the court erred
when it concluded that she failed to state claim s 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 time s2

relevant to this app eal

, Hiraishi taught scie nce 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 prob lematic students from mal e 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 s he claimed that Stephens on refused various reques ts (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 to ld Hiraishi that adjustments to ACHS’s science program were underway. She agree d 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 a lleged that many of the p roblems she previously identified had conti n ued . 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 p ersonally reviewed the nu mbers” 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 ma ster schedule based on collaborative communication through department ch airs 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 th e 2018

- 2019 school year

. The next day, however, Stephenson tol d 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 cont inue her full

- time employ ment 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 OUHS D high school.

Hiraishi declined Stephenson’s offer s . She decli ned the first o ffer becau se 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 o ther school

. Hiraishi then complained to DeLeon and the OUHSD Board of Trustees (Board) that Stephenson had retaliat ed against her for
her earlier complaints . She demanded t hat she retain full

- time employment at ACHS

, and urged OUHSD officials to adjust the
master schedule.

Over the ensuing weeks, Hiraishi proposed sever al
alternatives that woul d allow her to retain full

- time employment
at ACHS. Stephenson reject ed 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 to4

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
thi s request
, Hir aishi 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” f or her classes was “too

p hysically 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 medica l leave in March
2019. While on leave, she filed a nother 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 t he federal Equal Employment Opportunity Commission. She then took a “sabbatical leave of absence.” The initial complaint Hiraishi sued Responden ts , a sserting claims of gender harassment against Stephenson and aiding and abetting against DeLeon. 1 Respondents demurre d. They argued that
Hiraishi failed to state a claim for gender harassment because the allegations pertained to official employment a ctions

1 The complaint also asserted claims of retaliation and failure to prevent retaliatio n and harassment against OUHSD. Th o s e claims are not par t o f th is appeal.5

Stephenson took on behalf of ACHS

. The y argued that Hiraishi failed to state a claim for aiding and abetting because she di d not adequately ple a d gender harassment . Even if she di d, DeLeon could not be personally liable fo r failing to prevent i t. The trial court agreed with Respondents and sustained their demurrer. It granted Hiraishi leave to amend her complaint.

The first amended complaint Hiraishi’s f

irst a mended c omplaint added allegat ions
that , in 2016, Stephenso n : (1) d en ied her req uest f or a laboratory
assistant even though she granted a male teacher ’s request, (2)
i ncreas ed her workload by assigning more students to her classes
than to the classes of male teachers , (3) t ransferr ed problem students from the classe s of male teachers to her classes , (4)
h ir ed a male teacher instead of her for an open coach ing position, and (5) p rovid ed support and equipment to male teachers but refused to provide it for her. Hiraishi also a lleged that, in 2017 and 2018, Stephenson : (6) limited her to one a ssistant 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 posi tions that went instead to
less

- qualified male teachers

.

As to DeLeon, the amende d complaint included
additional detail s 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 Hi raishi ’s February 2017 co mmunications
with DeLeon.

Responden ts again demurred, raising the same substantive arguments they had raised previously

. The trial6

court sustained the ir demurrer but granted Hiraishi leave to amend. The second amended complaint

In addition to the alleg ations included in the previous complaint s , Hiraishi’s second amended complaint : (1) d etailed the number of students in her classes and male teachers ’ classes, (2) alleged that Stephenson did not provide her with a key to the
facu lty 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 cor respondences with DeLeon and the Board, and (6) alleged that neither DeLeon nor the Board initiated an investigation in response to her complaint s that Stephenson had retaliated against her

.

Respondents again demurred , and requested that the
demurrer be s ustained without leave to amend. Th e trial court granted Respondents’ request. It then entered a judgment of
d ismissal in Respondent’s favor.
DISCUSSION
Hiraishi contends the trial court erred when it
sustained Respondents’ demurrer because she sufficie ntly pled her gender hara ssment claim. We disagree. Standard of review
When a court sustains a demurrer, we independently
determine whether the plaintiff’s complaint states a caus e 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 requir ement must be specifically pled. ( Fisher v. San
Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) We7

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

, b ut not contentions, deduc tions [

, ] 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 .) Whe n the court denie s leave to amend, we decide w hether 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) p rohibits a variety of conduct in the workplace , including gender discrimination and gender harassment. ( See Gov. Code, § 12940, subd s

. (a) & (j)(1).) D iscrimination focuses on “ explicit changes in the ‘ terms, conditions, or privi leges of employment ’ [cit ation] ; 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 jo b 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 “ focus es on situati ons in which the social

e nvironment 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 pe rformance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other8

personal motives.’” ( Reno v. Baird (1998) 18 Cal.4th 640, 646 ( Reno ).)
A s 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 t o show that they were forced to endure conduct that

w as unwelcome

, based on their gender

, and “‘ “ sufficient ly 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, 2 79 .)

Typically, o fficial employment actions such as “‘ hiring and firin g, job or project assignm ents, 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, decid ing 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 impro per 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.4t h at p. 708

. ) When so conveyed , “evidence that would otherwise be associated with a
discrimination claim [may] for m the basis of a harassment
claim.” ( Ibid

. ) For example, in Miller v. Department of Corrections (2005) 36 Cal.4t h 446 ( Miller )

, the Supre me Court considered

“ whether evidence of widespread sexual favoritism in the9

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 offic ial employment actions, including promotions and favorable job assignments given to female employees involved in sexual relations hips with a particular male supervisor .” ( Id

. at p. 708.) The court concluded
that the plaintiffs “ n everthele ss stated a prim a 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
th e workplace is to engage in sexual conduct with their supervisors or the management. ’ [Citations.]” ( Ibid

. )

Our Supreme C ourt further explain ed how evidence traditionally associated with a discrimination claim can support a ha rassment claim in Roby

, s upra , 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. 7 08 .) 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 [t he plaintiff], and [her] disparate treatment of [the plaintiff] in handing out small gifts ”

— w ere “ unrelated to [ t he supervisor’s] managerial role, engaged in for her own purposes. ” ( Id

. at p. 709.) But other acts were “ best characterized as official empl oyment actions ” : the sup ervisor’s “ shunning of [the plaintiff] during staff meetings, [the] belittling of [the plaintiff’s] job, and [ th e] reprimand [ing] of [the plaintiff] in front of [he r ] coworkers. ”10

( Ibid

. ) These official acts could “ provide evident iary support for a
harass ment 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 show ing that the actions had
the “ secondary effect of communicat ing a hostile message

. ” ( Roby , at p. 709 .) “This occurs when the actions establish a
wide spread pattern of bias

. ” ( Ibid

. ) Analysis Hiraishi fails to establish the requisite pattern here
because she ha s not pled sufficient facts to show that Stephenson’s allegedly offensive conduct was so severe and pervasive that i t created a hostile work environment. T he 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

. Th ese 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 environme nt gender
harassment

. Wh ere, as here, a plaintiff offers comparative allegations of employment actions that disparately affected members of different genders , the y must show that those actions had the “ secondary effect of communicating a hostile message.” ( Roby

, supra , 47 Cal.4t h 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 t he allegati ons against Stephenson

— de nying 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 ACHS 2

— as outside the scope of her duties as ACHS principal

. According to Hiraishi, th ese non

- employment

related 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 agree d with Hiraishi’s cha racterization of Stephens on’s actions, they would not support her hostile work environment gender harassment claim. In her complaint, Hiraishi alleges that Stephenson took he r purportedly

non

- employment

- related actions in response to Hiraishi’s complaints : they occurred after Hi raishi criticiz ed 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 ret aliatory conduct .” (Italics added.) Such r etaliatory 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 [ no t ing 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.4 th 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 amounte d to harassment. More
si gnificantly, t he conduct Hiraishi describes

— Stephenson’s
decisions to demot e Hiraishi

, refus e to hire her for extracurricular positions, increas e her workload, and den y 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

. Th ey 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

— “cre ated a hostile work envir onment.” ( Ibid

. )
The trial court thus correctly sustained the demurrer to Hiraishi’s gender harassment claim against Stephenson. 3 It follows that s ustaining t he demurrer to the aiding and abetting claim against DeLeon was also proper. ( Reno

, supra , 1 8 Cal.4th

3 Hiraishi contend s 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 show ing a reasonable possibility that the defects in he r 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 con cur:

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.
Coa tes, Nadia A. Sarkis ; Woo Houska, Maureen M. Houska and Carol A. Woo for Defendants and Respondents.