                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 21 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



In the Matter of: BRUCE G. FAGEL,                No. 10-56134

              Debtor,                            D.C. No. 2:07-cv-02324-DDP


R.M., a minor and incompetent, by and            MEMORANDUM *
through her Guardian ad Litem, Denielle
Morales,

              Appellant,

    v.

BRUCE G. FAGEL, as a Law Corporation
and individually,

              Appellee.



                    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


         *
             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).
Before: WARDLAW and CALLAHAN, Circuit Judges, and MARTINEZ, District
Judge.***


      Sometime in 1993, defendant-appellee Bruce G. Fagel committed legal

malpractice while representing Ruby Morales1 in a medical malpractice action.

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.




          ***
             The Honorable Ricardo S. Martinez, District Judge for the U.S.
District Court for Western Washington, sitting by designation.
      1
              Although referred to as R.M. in the caption of this appeal, Plaintiff-
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-
      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


                                         -3-
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.




                                         -4-
