In the Matter of: BRUCE G. FAGEL v. Bruce G. Fagel, as a Law Corporation and individually

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: BRUCE G. FAGEL,
Debtor,
R.M., a minor and incompetent, by and
through her Guardian ad Litem, Denielle
Morales,
Appellant,
v.
BRUCE G. FAGEL, as a Law Corporation
and individually,
Appellee.
No. 10-56134
D.C. No. 2:07-cv-02324-DDP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted February 10, 2012**
Pasadena, California
FILED
FEB 21 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable Ricardo S. Martinez, District Judge for the U.S.***
District Court for Western Washington, sitting by designation.
Although referred to as R.M. in the caption of this appeal, Plaintiff-1
appellant Ruby Morales is no longer a minor. The parties use her full name in their
briefs, and the district court did the same in its order. This memorandum follows
that lead.
-2-
Before: WARDLAW and CALLAHAN, Circuit Judges, and MARTINEZ, District
Judge.***
Sometime in 1993, defendant-appellee Bruce G. Fagel committed legal
malpractice while representing Ruby Morales in a medical malpractice action.1
The parties are still arguing over the proper amount of damages Ruby should be
awarded. The dispute continued in the bankruptcy court following Fagel’s filing
for bankruptcy protection, and that court eventually awarded Ruby damages in the
amount of $2,966,725. Ruby appealed to the district court, which held that she had
waived or abandoned any challenge to the damages award by consenting to the
amount. We find that Ruby did not waive her challenge to the award because she
challenged the amount of damages in her first post-judgment motion to the
bankruptcy court. However, because the damages award is supported by evidence
in the record, we affirm.

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We review a district court’s ruling on appeal from a bankruptcy court de
novo. In re Greene, 583 F.3d 614, 618 (9th Cir. 2009). We “appl[y] the same
standard of review applied by the district court.” Id. The district court’s decision
may be affirmed on any ground supported by the record, even if not relied upon by
the district court. Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097 (9th
Cir. 2003). Accordingly, the decision may be affirmed, “even if the district court
relied on the wrong grounds or wrong reasoning.” Cigna Property & Cas. Ins. Co.
v. Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir. 1998) (citation omitted).
Ruby had challenged the amount of the judgment in her first motion to alter
or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). The
bankruptcy court had granted her motion, reconsidered the damages, but in the end,
still found Fagel’s expert and his damages schedule more persuasive.
A Rule 59(e) motion to alter or amend a judgment may be used to
substantively challenge a court’s entry of judgment, but it “may not be used to
relitigate old matters, or to raise arguments or present evidence that could have
been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S.
471, 485 n.5 (2008) (citations omitted). Thus, Ruby’s second Rule 59(e) motion
could not properly raise the same argument over the amount of damages. It would
be patently unfair to find that Ruby waived a challenge to the damages award by

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complying with the prohibition against improperly relitigating old matters in a
Rule 59(e) motion.
The bankruptcy court’s “computation of damages is a finding of fact we
review for clear error.” Simeonoff v. Hiner, 249 F.3d 883, 893 (9th Cir. 2001).
We do “not disturb an award of damages unless if is ‘clearly unsupported by the
evidence’ or it ‘shocks the conscience.’” Id. (quoting Milgard Tempering, Inc. v.
Selas Corp. of Am., 902 F.2d 703, 710 (9th Cir. 1990)).
This case comes down to competing testimony from expert forensic
economists regarding the calculation and present value of Ruby’s future damages,
including pain and suffering, loss of earnings, and medical costs. The bankruptcy
judge found Fagel’s expert more persuasive. Ruby does not cite any evidence in
the record demonstrating that the bankruptcy court’s use of Fagel’s damage
calculation was clearly erroneous. While there would have been sufficient
evidence to support either expert, the court did not commit clear error by choosing
to credit Fagel’s expert.
AFFIRMED.

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