On Nov. 8, 2008, plaintiff Christopher Cox, 52, a self-employed contractor, was a passenger on a power boat owned and operated by his friend in Dana Point. At approximately 4:40 p.m., after the boat docked at a boat slip at Dana Point Harbor, they were confronted by Casey DiPietro and Nicholas Leone, who had been in a dingy near the boat slip, about the power boat waking (interrupting) their dingy. Cox claimed the two men then attacked him and his friend, causing him to fall into the harbor. Cox sued DiPietro and Leone. He alleged that the defendants’ actions constituted assault and battery, intentional infliction of emotional distress, negligence, and conspiracy. The case proceeded to a bench trial. Cox contended that DiPietro and Leone were intoxicated at the time, and violently confronted him and his friend with fists, after they docked at the boat slip. He claimed he was unable to defend himself, since his right foot was in an orthopedic walking boot from a previous accident, and that he was either pushed or forced into the harbor by the defendants. Cox also presented videotape evidence of the incident that was shot by his friend while the altercation was happening. Both DiPietro and Leone were prosecuted for misdemeanor battery and pled no contest. Leone failed to appear at the civil, and a default judgment was entered. DiPietro initially represented himself, but he received issue sanctions on Requests for Admissions precluding any defense evidence as to liability and/or self-defense. However, the Law Offices of Harvey L. Decker was substituted into the case approximately one week before trial, and the firm’s ex-parte motion for a bench trial continuance was denied. At trial, DiPietro denied assaulting Cox., A friend took Cox to an emergency room from the scene of the accident. Cox claimed a soft-tissue injury to his neck, as well as an exacerbation of a prior right foot fracture. He also claimed contusions and a broken bridge, for which he required dental work. He subsequently followed up with two months of physical therapy for his orthopedic . Cox claimed that he still has some residual neck pain and that the recovery from his prior foot injury was setback by the incident in question. He alleged that as a result, he still experiences some pain and discomfort in his right foot. Cox further claimed he can no longer jet ski and is limited in his capacity as a self-employed contractor. Thus, he missed a year of work and sought recovery of $62,500 in damages for his past lost earnings, as well as $6,818 in damages for his past medical costs (Hanif calculation) and $25,000 in damages for his past and future pain and suffering. In addition, Cox sought recovery of punitive damages. Defense counsel argued that there was no proper foundation for Cox’s past medical bills, and that the plaintiff’s foot injury was pre-existing and not aggravated during the alleged incident.