Filed 7/5/13 Drimmel v. SettlementOne CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
                                   DIVISION ONE

                                           STATE OF CALIFORNIA



SYLVIE DRIMMEL ,                                                    D060144

         Cross-complainant and Appellant,

         v.                                                          (Super. Ct. No. 37-2007-00073917-
                                                                     CU-BT-CTL)
SETTLEMENTONE CREDIT CORP.,

         Cross-defendant and Respondent.



         APPEAL from a judgment of the Superior Court of San Diego County, Joel M.

Pressman, Judge. Affirmed.



         Bleiler & Bond, Diane E. Bond; Simpson & Moore and Sean Simpson for Cross-

complainant and Appellant.

         The Cabrera Firm and Guillermo Cabrera for Cross-defendant and Respondent.

         In this employment discrimination case, an employee was promoted from her

position as the operations manager of one portion of her employer's title, escrow and

credit information business to vice-president of a new and separate marketing entity her
employer established. Following her promotion, a male who was younger than the

employee took over her position as operations manager. The new marketing entity did

not do well and, according to the employer, the employee did not perform well in her new

position. The employee was terminated, and the new entity was discontinued.

       The trial court rejected the employee's contention that in losing her position as

operations manager the employee was the victim of unlawful discrimination. The trial

court found that the employee's promotion to vice-president of the marketing entity was

not an adverse employment action and that her later termination from that position was

based on the employee's performance as well as financial and economic circumstances.

The record fully supports the trial court's finding on these issues. Thus, we affirm the

trial court's judgment in favor of the employer.

                   FACTUAL AND PROCEDUAL BACKGROUND

       1. Employment

       In July 2005, cross-complainant and appellant Sylvie Drimmel began working for

cross-defendant and respondent SettlementOne Credit Corporation (erroneously sued in

the cross-complaint as Settlement One Title Company; hereafter SettlementOne) as its

director of operations. Drimmel was initially paid a salary of $85,000 a year and oversaw

SettlementOne's day-to-day operations.

       In early 2006, SettlementOne's chief executive officer, Jevin Sackett, began

considering establishing a multi-level marketing program for SettlementOne's title,

escrow and credit products. Because Drimmel had experience with multi-level


                                             2
marketing, Sackett discussed the idea with her and looked to Drimmel to lead a new

program which would recruit and train other people to sell SettlementOne's products and

place its products in already existing businesses.

       In November 2006, Drimmel began performing tasks needed to launch the

marketing program, including developing a draft business plan. The draft business plan

Drimmel prepared set a recruiting goal for January 2007 of three affiliates, or individuals

selling SettlementOne product lines, and one dealer, or existing business, which would

add the SettlementOne product line to its portfolio of products; for February, the draft

plan called for recruiting three additional affiliates and one dealer; for March, the plan set

a goal of five additional affiliates and one more dealer.

       In January 2007, Drimmel was formally offered and accepted a position as vice-

president of corporate development at SettlementOne. Drimmel received a 10 percent

raise when she was promoted to the new position, bringing her salary to $100,000;

significantly, her promotion made her responsible for the new marketing endeavor.

SettlementOne replaced Drimmel as director of operations with another employee who

was a man and was younger than 40 years old.

       Drimmel did not perform well in the new position. According to Sackett, it

appeared to him that rather than focusing on recruiting affiliates and dealers, Drimmel

was still functioning as the operations manager and doing many tasks which, in Sackett's

view, should have been performed by subordinates or other employees with particular

expertise. According to Sackett, by February of 2007, Drimmel had not placed


                                              3
advertisements on any online media and had not recruited any affiliates or dealers.

Eventually, Drimmel was able to recruit, from existing business relationships with

SettlementOne, three affiliates.

       According to Sackett, because of Drimmel's poor performance and because of the

then deteriorating real estate and mortgage market, in the middle of February 2007, he

decided to terminate Drimmel and discontinue the marketing program. Drimmel's

employment ended on March 22, 2007.

       2. Litigation

       This lawsuit was initiated by SettlementOne, which filed a complaint against

Drimmel alleging causes of action for intentional interference with contractual relations,

intentional interference with prospective economic advantage, and unfair business

practices. By way of a cross-complaint, Drimmel alleged multiple causes of action,

including age and sex discrimination claims.

       Prior to trial, SettlementOne dismissed its claims against Drimmel. Also prior to

trial, the trial court granted summary adjudication in SettlementOne's favor on all of

Drimmel's claims except for her allegations of age and sex discrimination.

       At trial, Drimmel argued that her promotion to vice-president of corporate

development was merely a ruse by which SettlementOne could replace her as director of

operations with a younger male employee. The trial court rejected this theory and found

that her promotion was bona fide and that she was terminated for nondiscriminatory

reasons. Thus, the trial court found Drimmel was not the victim of age or sex


                                             4
discrimination.

       After the trial court filed its statement of decision, Drimmel moved for a new trial,

filed objections to the statement of decision and asked the trial court to make more

specific findings. The trial court did not alter its findings and instead entered judgment in

favor of SettlementOne. Drimmel filed a timely notice of appeal.

                                       DISCUSSION

                                              I

       Drimmel argues at some length that the trial court's statement of decision was

inadequate and that the trial court erred in failing to make further, more specific findings

after she objected to its proposed statement of decision. We find no error.

       Code of Civil Procedure sections 632 and 634 require no more than that a

statement of decision fairly disclose "determinations as to the ultimate facts and material

issues in the case. [Citation.]" (Central Valley General Hospital v. Smith (2008) 162

Cal.App.4th 501, 513.) "When this rule is applied, the term 'ultimate fact' generally

refers to a core fact, such as an essential element of a claim. [Citation.] Ultimate facts

are distinguished from evidentiary facts and from legal conclusions. [Citations.]" (Ibid.;

see also Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 559

(Yield Dynamics) [ultimate fact is fact "without which the claim or defense must fail"].)

Here, by way of its statement of decision, the trial court determined that Drimmel's

promotion was not an adverse employment action and that SettlementOne had

nondiscriminatory reasons for terminating her employment as vice-president of corporate


                                              5
development. These determinations, which as we explain are supported by substantial

evidence, are sufficient to defeat Drimmel's discrimination claims. Thus, the statement of

decision more than adequately discloses the trial court's resolution of ultimate facts and

thereby meets the requirements of Code of Civil Procedure sections 632 and 634.

Accordingly, we reject Drimmel's nominal argument that the statement of decision was

defective and that the trial court erred in failing to respond to her objections to it.

       In this regard, in reviewing Drimmel's contentions with respect to the statement of

decision, we note that none are directed to any failure by the trial court to fulfill its

obligations under Code of Civil Procedure sections 632 and 634 but instead are

disagreements with respect to the merits of the trial court's resolution of contested legal

and factual issues. Given these circumstances, although we find no formal defect in the

statement of decision, we will nonetheless address the substantive merit of each of the

issues Drimmel raises in the guise of an attack on the adequacy of the statement of

decision.

                                               II

       Before reaching the substantive merits of Drimmel's arguments, the principles

governing our review of the trial court's decision deserve attention: "First, the trial

court's judgment is presumptively correct, such that error must be affirmatively

demonstrated, and where the record is silent the reviewing court will indulge all

reasonable inferences in support of the judgment. [Citations.] This means that an

appellant must do more than assert error and leave it to the appellate court to search the


                                               6
record and the law books to test his claim. The appellant must present an adequate

argument including citations to supporting authorities and to relevant portions of the

record. [Citations.] Of course this also means that during trial, the parties must ensure

that an adequate record is made of errors by which they are or may be aggrieved;

ordinarily, errors not reflected in the trial record will not, and indeed cannot, sustain a

reversal on appeal. [Citations.]

       "Second, findings must be sustained if they are supported by substantial evidence,

even though the evidence could also have justified contrary findings. [Citation.] When

combined with the foregoing principle this means that an appellant who challenges a

factual determination in the trial court—a jury verdict, or a finding by the judge in a

nonjury trial—must marshal all of the record evidence relevant to the point in question

and affirmatively demonstrate its insufficiency to sustain the challenged finding.

[Citation.]

       "Third, even if error is demonstrated it will rarely warrant reversal unless it

appears 'reasonably probable that a result more favorable to the appealing party would

have been reached in the absence of the error.' [Citations.] This means the appellant

must show not only that error occurred but that it is likely to have affected the outcome."

(Yield Dynamics, supra, 154 Cal.App.4th at pp. 556-557.)

                                              III

       In her first and principal argument on appeal, Drimmel challenges the trial court's

finding that in offering Drimmel the position of vice-president of corporate development,


                                               7
with a pay raise, SettlementOne was in fact offering Drimmel a bona fide promotion. In

making this finding, the trial court rejected Drimmel's contention the new position was an

adverse employment action designed to replace her as director of operations with a

younger male employee.

       The trial court's finding that the new position was a bona fide promotion is fully

supported by the record. We note the record includes Sackett's testimony that creation of

the multi-level marketing entity was a good-faith effort to expand SettlementOne's

business, evidence Sackett and Drimmel expended considerable effort in developing a

draft business plan and evidence Drimmel got a raise in salary with the new position.

Importantly, the record also shows Drimmel herself looked at the new position as an

opportunity to advance her career. In an email Drimmel sent to Sackett in response to his

initial offer to her, and in which she asked for a higher salary, she stated in part: "I am

excited about this opportunity and look forward to taking this endeavor to new heights.

Based upon our meetings, I am convinced that this is the right direction for

SettlementOne and I feel confident I will make a significant contribution to the growth

and profitability of the company."

       We also note Sackett's testimony with respect to the real estate market, which

began a precipitous decline in early 2007. The trial court could reasonably conclude that

the changing market conditions explained in large part Sackett's rapid change of heart

with respect to the new marketing project.

       Although the relatively short period of time Sackett gave Drimmel and the new


                                              8
marketing entity an opportunity to succeed, taken together with the absence of a formal

budget for the endeavor, might support a contrary factual determination, given the other

evidence which suggests that the new entity and Drimmel's promotion were bona fide, we

are in no position on appeal to reject the trial court's resolution of the conflicting

evidence. In this regard, the record here is in sharp contrast to the summary judgment the

court considered in Reid v. Google, Inc. (2010) 50 Cal.4th 512 (Reid), upon which

Drimmel relies in attacking the trial court's finding that her promotion was bona fide.

       In Reid, the court held that the plaintiff had established a prima facie case of age

discrimination by showing that in addition to (1) disparaging remarks about his age

which had been made by both subordinates and executives to whom the plaintiff reported,

(2) an email exchange which made a specific reference to the plaintiff's mature age, (3)

an email which made reference to "getting [the plaintiff] out," (4) statistical evidence of

discrimination, and (5) changing rationales for the plaintiff's termination, the plaintiff had

also shown that before he was terminated he had been demoted to a nonviable position in

his employer's company. (Reid, supra, 50 Cal.4th at p. 545.) The court held that given

this combination of evidence, the trial court erred in granting the employer's motion for

summary judgment. (Ibid.)

       Nothing in Reid stands for the proposition that any promotion or transfer, which is

thereafter followed by a termination, is suspect or that a fact finder may not, as the trial

court did here, examine the particular circumstances under which a promotion was made

and either accept or reject the plaintiff's characterization of it. Unlike the summary


                                               9
judgment being reviewed in Reid, here, the trial court found on substantial evidence that

Drimmel's promotion was bona fide and, as we have noted, we are in no position to

disturb that factual determination.

       In a related argument, Drimmel contends the evidence shows that in her new

position she was given an unattainable goal and thus set up for failure in a larger scheme

to terminate her because of her age and sex. (See Willnerd v. First Nat. Nebraska, Inc.

(8th Cir. 2009) 558 F.3d 770, 779; Denesha v. Farmers Ins. Exch. (8th Cir. 1998) 161

F.3d 491, 495.) The difficulty with this argument is that prior to commencing her new

job, Drimmel helped develop the business plan which set forth the goals of the program

and thereafter was not able to meet those goals. Drimmel's active participation in setting

the goals for the multi-level marketing project undermines her contention that as a matter

of law she was set up for failure.

                                            IV

       Next, Drimmel challenges the trial court's finding that she did not establish a

prima facie case of discrimination. Again, we find no error.

       A plaintiff in a wrongful termination case establishes a prima facie case of

discrimination by showing (1) he or she was a member of a protected class, (2) he or she

was competently performing her job, (3) he or she suffered an adverse employment

action, and (4) some other circumstance suggests discriminatory motive. (See Guz v.

Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

       Because the record shows that her promotion to vice-president of corporate


                                            10
development was bona fide, Drimmel may not rely upon the promotion to establish either

the requisite adverse employment action or any discriminatory motive. A bona fide

promotion, such as the one the trial court found, is not only not adverse, but it will not

support any logical inference of an unlawful motive on the part of a defendant.

       Drimmel of course did suffer an undeniably adverse action when she was later

terminated from her job as vice-president of corporate development. The difficulty

which then arises for Drimmel is showing some circumstance that suggests her

termination was motivated by discriminatory animus.

       As the trial court noted, an inference of discriminatory animus arises and a prima

facie case is established if a terminated employee is replaced by someone not in a

protected class; here, someone who is either younger and a male or both. (See

Schoonmaker v. Spartan Graphics Leasing, LLC (6th Cir. 2010) 595 F.3d 261, 267.)

Because the marketing program was discontinued and no one replaced Drimmel as vice-

president of corporate development, she cannot establish any discriminatory motive in

that manner.

       Drimmel is then left with the fact SettlementOne chose not to displace the person

who took her former position as director of operations. She argues she presented

evidence she was more qualified than her replacement, and SettlementOne still needed a

director of operations. We cannot accept the proposition that, by itself, SetttlementOne's

unwillingness to terminate or demote Drimmel's replacement gives rise to any inference

of discriminatory animus. If Drimmel had successfully shown that her promotion was


                                             11
not bona fide, this argument might be persuasive. In that hypothetical situation, in which

the record showed that the promotion was only a pretext for SettlementOne's plan to

replace her with a younger male, a reasonable inference of discriminatory intent would

arise. However, as we have discussed, the record here supports the trial court's finding

that Drimmel's promotion and initial replacement as director of operations with a younger

male was bona fide and lawful. The fact the decision to promote the replacement was

lawful and nondiscriminatory undermines any inference the later decision to retain him

was somehow colored by discriminatory intent.

       Also undermining any inference of discriminatory intent in SettlementOne's

decision to retain Drimmel's replacement is the fact Drimmel was initially hired and

promoted by Jevin Sackett. "'[W]here the same actor is responsible for both the hiring

and the firing of a discrimination plaintiff, and both actions occur within a short period of

time, a strong inference arises that there was no discriminatory motive.'" (Nazir v. United

Airlines, Inc. (2009) 178 Cal.App.4th 243, 272 (Nazir).)1

       Drimmel also relies on two alternative theories to establish discriminatory intent.

Neither is persuasive:

       Drimmel contends she demonstrated discriminatory animus by showing that the

reasons SettlementOne offered for her termination were false. Although discriminatory

intent may be inferred when an employer offers false justification for an adverse

1      Although Drimmel spends a good deal of effort criticizing the so-called "same
actor" doctrine where, as here, it is treated as a factual inference to be weighed along with
other evidence rather than as a mandatory presumption, it is appropriate. (See Nazir,
supra, 178 Cal.App.4th at p. 273.)
                                             12
employment action (see Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S.

133, 143, 148), here the trial court found, on substantial evidence, that the reasons offered

by SettlementOne—Drimmel's poor performance in the new position and the

deteriorating real estate market—were its actual reasons for terminating her employment.

The fact Drimmel did not meet her initial recruitment goals and the actual later collapse

of the real estate market in 2008 support a finding that performance issues and legitimate

economic fears in fact caused Sackett to terminate the program and Drimmel.

Importantly, as the trial court noted: "'It is the employer's honest belief in the stated

reasons for firing an employee and not the objective truth or falsity of the underlying

facts that is at issue[.]'" (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426,

436.)

        Drimmel also argues the trial court should have inferred discriminatory intent

from evidence she presented from other employees about what they perceived as

Sackett's preference for younger employees in general and younger attractive women in

particular. The trial court expressly rejected the notion that this evidence undermined the

reasons offered by SettlementOne for Drimmel's discharge. The trial court's

unwillingness to draw a connection between what the other employees believed about

Sackett and the circumstances surrounding Drimmel's actual discharge is, in turn,

supported by the fact Sackett hired and promoted Drimmel. (See Nazir, supra, 178

Cal.App.4th at p. 272.) In short, the trial court was more persuaded by Sackett's actual

hiring and promotion of Drimmel than by any biases perceived by other employees. On


                                              13
appeal, we are in no position to disturb this resolution of a factual issue.

                                               V

       Drimmel also argues the trial court erred in permitting SettlementOne to offer

evidence of the number of employees it laid off in 2007 and their age and gender.

SettlementOne offered the evidence to demonstrate that in 2007 its business was rapidly

shrinking and layoffs were necessary and that it did not discriminate on the basis of age

or gender. Drimmel objected to the evidence on the grounds that it was not disclosed

during discovery.

       We find no abuse of discretion in the trial court's admission of the statistical

evidence. In his deposition, Sackett testified that as the mortgage crisis was developing,

SettlementOne took a number of cost cutting measures, including laying off a number of

workers. Although in her discovery request Drimmel asked SettlementOne to set forth all

the information which supported its affirmative defense that her termination was justified

by nondiscriminatory reasons, the record does not show that Drimmel ever asked for any

statistics as to the number, gender and sex of those terminated. Given Drimmel's

opportunity to propound discovery which directly addressed the information provided by

Sackett at his deposition, and her failure to do so, the trial court did not abuse its

discretion in admitting the statistical evidence offered by SettlementOne, which was

subject to thorough cross-examination at trial.




                                              14
                                 DISPOSITION

    The judgment is affirmed. SettlementOne to recover its costs of appeal.




                                                                BENKE, Acting P. J.

WE CONCUR:


                    NARES, J.


                McINTYRE, J.




                                        15
