Filed 12/31/19 Diemandezi v. RLJ Lodging Trust CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

CHARLENE DIEMANDEZI,

Plaintiff and Respondent,

v.

RLJ LODGING TRUST et al.,

Defendants and Appellants.

A151311

(Alameda County

Super. Ct. No. RG15759540)

Charlene Diemandezi was injured at a Hilton Garden Inn operated by RLJ Lodging Trust (RLJ) when a television console fell on her. Diemandezi sued RLJ for premises liability and negligence. Following a jury trial, judgment was entered in favor of Diemandezi for $1,433,610. RLJ moved for a new trial on the grounds that the testimony of Diemandezi’s safety expert should have been stricken and that the jury’s award of $700,000 for future lost earnings is unsupported by any evidence. The trial court denied RLJ’s motion. On appeal, RLJ raises the same issues. It seeks a new trial either on all issues or on the question of future lost wages. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2014, Diemandezi was sitting near a television console in the lobby of the Hilton Garden Inn in Emeryville. An unidentified hotel visitor leaned against the console, causing it to fall onto Diemandezi’s right side. She suffered pain in her shoulder and arm and was taken to the hospital by ambulance. After being seen in the emergency department, she was released and returned to the hotel.

Prior to the accident, Diemandezi worked five to six days a week as a dentist at Western Dental in Merced. Following the accident, she continued to experience pain and did not work for three to four months.

When she returned to work, at Western Dental’s Madera office, her right arm and shoulder were still in pain. Diemandezi is right-handed, and she found she had trouble performing certain dental procedures; she was not as proficient as before. Her pain worsened.

After a month or two, she left Western Dental’s Madera office to take a management position at Western Dental’s Santa Maria office. However, one or two of the other dentists left that office, so Diemandezi was again called upon to perform general dentistry duties. She continued to experience pain, which affected her job performance.

Following an unrelated dispute with management regarding alleged OSHA violations, Diemandezi was fired from Western Dental. Three months later, she began working in a part-time position for Dr. Adrian in a private dental practice. While she was in this position, she experienced swelling and hot and cold sensations in her right hand. It was painful for her to do her job. After six months, Dr. Adrian fired her; he gave no reason.

Diemandezi then worked part-time (24 hours per week) for six months at Santa Barbara Family Dentistry. She continued to experience pain. She and her husband, who is also a dentist, decided to move to Washington state, where she believed she might find a slower paced dental practice, which she might be better able to handle. In Washington, she worked with Aspen Dental for about three months, but she continued to have pain while performing dental procedures. She stopped working for Aspen Dental in September 2016.

Diemandezi was not working when trial began in January 2017. She did not believe she could perform the tasks required of a dentist. Nonetheless, she wanted to work and believed there was “something out there” she could do, even if it required her to work only with her left arm.

There was considerable dispute about the extent to which Diemandezi is unable to use her right hand. She testified that it is always painful to move her right hand and she avoids using it, preferring her left hand instead. RLJ challenged that on cross-examination. It introduced a series of photographs from Diemandezi’s public Facebook page, showing her using her right arm and hand, including holding a smartphone above her head to take “selfies,” reaching above her head to touch a statue, feeding a giraffe, and using chopsticks. Diemandezi conceded she can do certain things with her right hand, but “unless I have to use it, I don’t, but I try my best.” RLJ also confronted Diemandezi with other Facebook entries showing that she had completed runs of up to six miles. As her attorney argued in opposing the new trial motion, defendant “hammered her on the Facebook [sic] that she could use her right hand with selfies and cooking.”

Dr. Howard Rosen was Diemandezi’s retained medical expert. He is board certified in pain management and anesthesiology. He examined Diemandezi twice and concluded she had complex regional pain syndrome (CRPS), which is a progressive pain condition affecting the sympathetic nervous system. It can be caused by trauma. When Dr. Rosen examined Diemandezi in August 2016, she complained of hair loss, brittle nails, swelling, pain and temperature changes on the right side. Dr. Rosen observed swelling, allodynia of the right thumb, and cooling and redness in her right hand, all of which are symptoms of CRPS. In December 2016, Dr. Rosen performed a procedure called a stellate ganglion block in which a local anesthetic is injected into a bundle of nerves. The anesthetic itself lasts for only 30 to 60 minutes, but if the patient’s pain relief lasts for a more extended period, then CRPS is indicated. Following the procedure, Diemandezi experienced pain relief for 48 hours.

Dr. Rosen opined that Diemandezi had almost every sign of CRPS and that her prior medical records describing her symptoms since the accident were also consistent with his diagnosis. He also explained that CRPS is generally progressive. It can start in one extremity and spread to others; the symptoms can worsen. He believed Diemandezi could work in a job that did not require her to use her right hand. He did not believe she could work as a dentist.

Dr. James Y. Soong, a board certified neurologist, was one of RLJ’s medical experts. He testified that Diemandezi does not have CRPS. According to Dr. Soong, Diemandezi did not have any objective signs of CRPS, such as muscle atrophy, skin abnormalities, edema, or tenderness. He also believed that the fact she continued to work as a dentist for 21 months after the accident indicated she did not have CRPS. Dr. Soong believed it was “medically impossible” to have CRPS and “be able to work as a dentist using your hands so extensively.” However, a juror asked (through the court), “Does CRPS manifest on a continuum such that different cases vary widely in severity?” Dr. Soong replied that it did, and that 80–90 percent of the cases he sees resolve, some without treatment.

RLJ also called Dr. Thomas Sampson, an orthopedic surgeon who was originally retained by Diemandezi’s attorney. He did not diagnose plaintiff with CRPS. Rather, he determined she had “adhesive capsulitis or frozen shoulder . . . .” On cross-examination, he stated when CRPS is developing it can “wax and wane . . . .”

Both parties called Dr. William Montgomery, an orthopedic surgeon who was originally retained by RLJ. Among other things, he testified that he believed Diemandezi was exaggerating her symptoms.

Dr. Lawrence Deneen, a vocational rehabilitation expert, opined that Diemandezi could be retrained to work as a medical and health services manager, which would require only limited use of her right arm.

Eric Volk, an economist retained by RLJ, was called by Diemandezi. He testified that if Diemandezi worked as a medical health services manager instead of as a dentist, the present value of her future lost earnings was $1,400,217. Volk also presented an alternative calculation in which he assumed that Diemandezi would return to dentistry within another year. In that scenario, her future lost earnings capacity would be only $186,057. On cross-examination, Volk explained that his calculations were based on certain assumptions. But if one made different assumptions about Diemandezi’s ability to go back to work, then one could generate a different lost earnings capacity based on his analysis; one would have to “tweak the numbers” to reflect the different assumptions.

Lonnie Haughton, a licensed general contractor with professional certificates relating to building safety, testified as an expert witness. Haughton has been in the construction industry for 24 years, and his background includes management of projects at several hotels. He has professional certificates that relate to building safety including as a commercial building inspector and as a specialist for disabled access purposes. Through the International Code Council he achieved master code professional certification. He has written professional publications and given presentations on building safety.

When Diemandezi tendered Haughton as an expert in safety standards in commercial buildings and hotels, RLJ stated it had no objection, and the court deemed Haughton to be an expert in this area. Haughton testified that in September 2016, he visited the Emeryville Hilton Garden Inn and spent about 20 minutes examining the console that fell on Diemandezi. It was tall and slender, not braced, and when Haughton lightly touched the top of the console, it moved “lightly . . . .” He did not measure the console, but he estimated it was about five and a half feet tall and 15–18 inches wide. Haughton did not know that the console was on wheels, but he testified that he believed this would make it even more dangerous.

Haughton opined that the console was top-heavy, making it more likely to tip if force were applied, posing a risk of injury in a heavily occupied lobby. In his view, the console did not meet (i) the Federal Emergency Management Agency (FEMA) E 74 standard for reducing the risks of nonstructural hazards in earthquakes, (ii) the Hilton Garden Inn’s own written safety standards, or (iii) general industry good practice. The FEMA standard states tall and slender wood or metal shelving units should be secured to prevent them from tipping. Haughton said this standard applies to the console because it is similar to a tall shelving unit. He was unequivocal: A violation of the FEMA standard is a breach of the standard of care in the hotel industry.

Haughton also testified that the Hilton Garden Inn’s manual of standards requires its franchisees to proactively evaluate conditions in their buildings to ensure the safety of guests. According to Haughton, the console did not meet this standard because it did not comply with the FEMA standard (even though it was in a high-risk seismic zone) and because it was installed in a manner in which it could readily be pushed over in a crowded lobby.

Finally, Haughton explained the general industry standard of “good practice” in the hotel industry: “[I]n all commercial properties, every property manager I have ever interacted with, hotel management, commercial managers, I would call it good practice. They are not necessarily burdening themselves with tracking down everything possible thing [sic] they should do. But there is . . . an ability to look around and recognize how their employees or their patrons could be harmed. And I think that certainly applies to this situation.” Under this standard, Haughton testified the console should have been attached to the floor or a wall or both.

The day after Haughton testified, RLJ made an oral motion to strike his testimony as unreliable, unsupported, and speculative citing Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 (Sargon). The court took the motion under submission and denied it the next day, stating that Haughton qualified as an expert, testified as many experts do, and that RLJ’s challenges to his testimony go to its weight, which is to be decided by the jury.

By a vote of 10 to 2 the jury found RLJ negligent, and by a vote of 9 to 3 it allocated 90 percent fault to RLJ and 10 percent to the visitor who leaned on the console. The jury awarded damages of $1,488,610, comprised of $122,582 for past lost earnings, $700,000 for future lost earnings, $116,028 for future medical expenses, $100,000 for past noneconomic loss, and $450,000 for future noneconomic loss.

RLJ moved for a new trial on the grounds that Haughton’s testimony should have been stricken and that the $700,000 award for future lost earnings was unsupported by the evidence. The court denied the motion.

DISCUSSION

A. No Abuse of Discretion in Admitting Haughton’s Testimony
B.
Except to the extent the trial court bases a ruling on a conclusion of law, a trial court ruling on the admissibility of expert testimony is reviewed for abuse of discretion. (Sargon, supra, 55 Cal.4th at p. 773.) “A ruling that constitutes an abuse of discretion has been described as one that is ‘so irrational or arbitrary that no reasonable person could agree with it.’ . . . [¶] . . . ‘The scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action . . . .” Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion. . . . The legal principles that govern the subject of discretionary action vary greatly with context. . . . They are derived from the common law or statutes under which discretion is conferred.’ ” (Ibid., citations omitted.)

Evidence Code section 801, subdivision (b) requires expert opinion testimony to be “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . .” Section 802 states: “A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion. The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based.”

“[U]nder Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.” (Sargon, supra, 55 Cal.4th at pp. 771–772.)

Although RLJ did not object to Haughton’s expert qualifications or to the bases for his opinion during his testimony, the day after Haughton’s testimony, RLJ made an oral motion to strike his testimony based on Sargon.

In Sargon, the trial court held an eight-day evidentiary hearing on one of the defendants’ motion to exclude the proffered expert’s opinion regarding alleged lost profits and determined the basis for the expert’s opinion was unreliable and speculative. (Sargon, supra, 55 Cal.4th at pp. 755, 766–767.) The Supreme Court held the trial court did not abuse its discretion by excluding the lost profits testimony. (Id. at p. 781.)

Here, when the trial court denied RLJ’s motion, it stated Sargon was distinguishable, “procedurally as well as other ways . . . .” It reaffirmed its ruling that Haughton was qualified as an expert and held that RLJ’s challenges go to his testimony’s weight, not admissibility.

As a preliminary matter, Diemandezi now argues that RLJ’s motion to strike Haughton’s testimony was untimely because it was made the day after Haughton was excused as a witness. According to Diemandezi, if the objection had been made earlier, the trial court would have been able to take additional evidence on the foundation for Haughton’s opinion. RLJ argues Diemandezi waived her objection that RLJ’s motion to strike was untimely because she failed to raise it when RLJ made its motion, and also that the timing of RLJ’s motion was reasonable because RLJ did not know the basis for Haughton’s opinion until he finished testifying.

We question RLJ’s argument that it “did not know—indeed could not know—how Haughton would attempt to justify his opinions . . . .” Haughton’s trial testimony references both a prior deposition and a report. At oral argument, RLJ’s counsel conceded there were no surprises when Haughton was on the stand. It appears that RLJ knew the bases for Haughton’s opinions prior to trial.

In general, for a trial court to exercise most effectively its gatekeeping function, objections to an expert’s testimony under Sargon and sections 801 and 802 should be made in limine. RLJ did not do that. However, we need not decide whether Diemandezi waived the argument that RLJ’s motion to strike was untimely, for on the merits, we find no basis to conclude the trial court erred. It acted well within its discretion in denying RLJ’s motion to strike Haughton’s testimony and its motion for new trial raising the same issue. (See Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 623 [rulings on new trial motions are reviewed for abuse of discretion].)

When Diemandezi tendered Haughton as an expert in safety standards in commercial buildings and hotels, RLJ’s counsel stated, “No objection,” and the court deemed Haughton an expert in this area. The record establishes that Haughton’s opinion that the console should have been attached to the floor or to the wall or both was based on his personal observation of the console and his training and experience in the building safety field, through which he learned the general industry standard of good practice.

RLJ argues Haughton’s reliance on general industry practice was speculative and unsupported because he did not visit other Hilton Garden Inns or other hotels to determine how they secured similar furnishings. But Haughton testified that he had worked as a project manager at several hotels and that his opinion was based upon his experience with managers of hotels and other commercial properties. In this context, that was permissible. (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1117 [“An expert may rely upon experiences and conversations he or she has had and information he or she has obtained without the necessity of providing the specifics of such experiences and conversations”].)

Haughton also based his opinion on FEMA standards for reducing the risks of nonstructural hazards in earthquakes and on the Hilton Garden Inn’s manual of standards for its franchisees, which he testified required franchisees to proactively evaluate safety conditions in their buildings. We find that Haughton’s opinion may properly be characterized as relying on the custom and practice in the hotel industry, and that it was within the court’s discretion to deny RLJ’s motions to strike his testimony and for a new trial. (See Alber v. Owens (1967) 66 Cal.2d 790, 800 [error to exclude expert opinion as to custom and practice in industry and whether lack of railings conformed with custom and practice].)

C. Jury’s Damages Award Was Based on Substantial Evidence
D.
“ ‘The amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. They see and hear the witnesses and frequently . . . see the injury and the impairment that has resulted therefrom. As a result, all presumptions are in favor of the decision of the trial court . . . .’ ” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 299, citation omitted.) We review the jury award of future lost earnings for substantial evidence, “giving due deference to the jury’s verdict and the trial court’s denial of the new trial motion.” (Id. at p. 300.) “ ‘In considering the contention that the damages are excessive the appellate court must determine every conflict in the evidence in respondent’s favor, and must give him the benefit of every inference reasonably to be drawn from the record . . . .’ ” (Ibid.)

RLJ contests only the $700,000 the jury awarded for future lost earnings. It contends this portion of the verdict is not supported by substantial evidence. RLJ offers the following syllogism: (1) Both Dr. Rosen and Dr. Soong agreed that if Diemandezi had CRPS, then she could never again work as a dentist. (2) The parties agreed (through the testimony of economist Mr. Volk) that if Diemandezi could not work as a dentist, then her future lost earnings would be $1,400,217. (3) The jury’s award of only $700,000 for future lost earnings means the jury necessarily rejected the theory that Diemandezi had CRPS. (4) There is no evidence supporting any other serious medical condition that continues to interfere with Diemandezi’s ability to work. (5) Therefore, the future lost earnings award must be speculative. Where the jury awards a sum less than “the only sum which the plaintiff could recover under the issues and the proof,” it demonstrates that the jury “sought merely to equalize the financial conditions and the defendant [is] entitled to a reversal.” (American States Public Service Co. v. Rath (1935) 2 Cal.2d 670, 672.)

Diemandezi argues that a verdict supported by substantial evidence is not a compromise verdict intended merely to equalize financial conditions (American States Public Service Co. v. Rath, supra, 2 Cal.2d at p. 672) and that, here, substantial evidence supports the jury’s award. We agree.

Although Drs. Rosen and Soong opined that Diemandezi could not work as a dentist if she had CRPS, that was not the only evidence before the jury. There was ample evidence that she had worked as a dentist after the accident, despite Dr. Rosen’s diagnosis of CRPS. The jury was well aware that she had worked both full-time and part-time for Western Dental in Madera and Santa Maria, for Santa Barbara Family Dentistry, and for Aspen Dental. In addition, on cross-examination, RLJ demonstrated that Diemandezi appeared to have greater use of her right arm than she acknowledged—taking selfies, feeding a giraffe, reaching up to lean her arm on a statue for a photo and so on.

The jury also heard Dr. Montgomery’s opinion that Diemandezi was exaggerating the extent of her injury. It heard Dr. Soong say she did not have CRPS, and it had evidence of an alternative diagnosis (adhesive capsulitis) from Dr. Sampson. It also heard Dr. Sampson say that symptoms of CRPS can “wax and wane . . . .”

Thus, there was substantial evidence from which the jury could have concluded that Diemandezi was capable of working part-time despite what Drs. Rosen and Soong believed.

Indeed, that appears to have been the view of the trial judge in denying RLJ’s motion for a new trial. The court said, “What about part-time working? [¶] . . . [¶] I think the concern I have is that I don’t think it’s as simple as if she had CRPS or not. [¶] I think that there’s some degrees of CRPS that they could have weighed. [¶] There was evidence, of course, of Facebook activity, certain things that she was doing that they could have felt she still had CRPS, but maybe her damages weren’t as significant as she was trying to argue. . . .”

And, contrary to RLJ’s position, there was evidence from which the jury could properly calculate a reduced amount of damages. Mr. Volk explained the basis of his calculations but said one could “tweak the numbers” if one wished to make different assumptions. It appears it would be a simple matter to adjust the calculations to reflect an ability to work part-time. Again, the trial judge considered that possibility when he said, “It may not be arbitrary if they literally dissected the economist’s numbers and they themselves decided to discount certain things, or not believe certain things.”

The amount of future lost earnings does not need to be calculated with absolute certainty. (Sargon, supra, 55 Cal.4th at pp. 773–774.) Here, the jury was permitted to determine Diemandezi’s future lost earnings based upon the evidence presented at trial. (Ibid.)

From a review of the entire record, it is quite clear that there was a significant dispute, with evidence on both sides, about the extent of Diemandezi’s impairment. In such cases, we do not second-guess the decisions of the jury and the trial judge, who observed the witnesses and weighed the testimony. As noted, our role is to determine if there is substantial evidence to support the verdict, giving due deference to the trier of fact and the trial court. Here, that standard is met. There was substantial evidence to support the jury’s award. We find the trial court’s denial of RLJ’s motion for a new trial was not an abuse of discretion.

In doing so, we reject RLJ’s argument that the law requires a different result. It says the jury was not free to disregard the “undisputed evidence” that Diemandezi could not work as a dentist at all if she had CRPS, and that the experts’ testimony on this point is conclusive on the parties “like a stipulation . . . .” Even assuming the evidence were undisputed—which it was not—RLJ misstates the law. The testimony of the medical experts is not a stipulation. It is evidence for the jury to weigh and consider. The jury was correctly instructed that “[y]ou do not have to accept an expert’s opinion. As with any other witness, it is up to you to decide whether you believe the expert’s testimony and choose to use it as a basis for your decision. You may believe all, part, or none of an expert’s testimony.” (CACI No. 219.)

Provided the trier of fact does not act arbitrarily, it generally may reject even uncontroverted witness testimony, including expert testimony. (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632, 634–636 [jury could reject uncontroverted opinion plaintiff suffered asbestosis] (Howard).) Howard explains the exception to the general rule applies only in professional negligence cases in which the uncontroverted expert testimony conclusively establishes the standard of care. (Id. at p. 632.) Professional negligence is not at issue here.

RLJ argues that Howard is distinguishable because it involved only one testifying expert, whereas here the opposing experts agree as to one point. We find this factual difference immaterial. A fact finder may reject uncontroverted expert testimony, in part or in full, and it makes no difference whether the uncontroverted opinion is that of a single expert or of more than one. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884–885, 889 [trier of fact may find rental value of property was below that given by opposing experts].) In addition, the evidence was not uncontroverted. For example, Dr. Montgomery believed Diemandezi was exaggerating her problems, and Dr. Sampson testified that she was suffering from adhesive capsulitis, not CRPS.

RLJ cites Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 313 (Huber), Lindsay v. County of San Diego Retirement Bd. (1964) 231 Cal.App.2d 156, 160 (Lindsay), and Mittelman v. Seifert (1971) 17 Cal.App.3d 51, 69 (Mittelman) for the proposition that “when the matter in issue is within the knowledge of experts only and not within common knowledge, expert evidence is conclusive and cannot be disregarded.” None of these cases is controlling here. Huber involved professional negligence allegations and it explains (just before the language quoted by RLJ) that “[o]rdinarily, where a professional person is accused of negligence in failing to adhere to accepted standards within his profession the accepted standards must be established only by qualified expert testimony [citations] unless the standard is a matter of common knowledge [citation].” (Huber, supra, at p. 313.) When read in context, the statement RLJ quotes from the Huber decision relates only to matters regarding professional negligence, which, as noted, is the exception to the general rule.

Lindsay involved an administrative writ of mandamus to review proceedings before a county retirement board regarding the cause of a county employee’s disability. (Lindsay, supra, 231 Cal.App.2d at p. 158.) At the board proceedings, letters from medical doctors were admitted, which the employee argued conclusively established permanent incapacity arising out of his employment. (Id. at pp. 157–158, 160.) The board found the employee’s disability not to be service connected. (Id. at p. 158.) The employee argued the court was required to accept the medical testimony. (Id. at p. 160.) The Court of Appeal determined the evidence in the letters was not one-sided. It said, “We cannot hold that the evidence compels a finding, as a matter of law . . . .” (Id. at pp. 160–161.) The cause of the employee’s disability was “a question of fact for the Board to determine under all the evidence produced and inferences arising therefrom.” (Ibid.)

Mittelman was an appeal of a defense verdict in a wrongful death lawsuit against the estate of a pilot–owner of an airplane in which the plaintiffs’ parents and the pilot were killed. (Mittelman, supra, 17 Cal.App.3d at p. 55.) The court examined the testimony of expert pilots regarding the flying conditions on the night of the crash and found it to be uncontradicted and conclusive that the pilot had committed willful misconduct, and that the jury could not disregard the expert evidence. (Id. at p. 69.) As Howard explains, this is a misstatement of law and “[t]he exceptional principle requiring a fact finder to accept uncontradicted expert testimony as conclusive applies only in professional negligence cases where the standard of care must be established by expert testimony.” (Howard, supra, at p. 632, original italics.)

As stated above, the jury here was properly instructed that it could believe “all, part, or none of an expert’s testimony.” The jury was free to credit or discredit any part of the experts’ testimony. There was no error in that.

DISPOSITION

The judgment is affirmed. Diemandezi shall recover her costs on appeal.

 

_________________________

Goode, J.*

WE CONCUR:

_________________________

Fujisaki, Acting P. J.

_________________________

Petrou, J.

A151311/Diemandezi v. RLJ Lodging Trust