Pain of a Four-Year-Old’s Death Has Stalked the Road to Court

No one is claiming that the drowning death of four-year-old Yoni Gottesman is not a tragedy. For more than eight minutes, his body floated in the shallow end of the Cathedral Oaks Athletic Club swimming pool while other children swam and played around him and lifeguards sat just feet away, oblivious to the fact the boy was drowning. Eventually, the boy was reported by another child and pulled from the water, but his lifeless body could not be revived. A surveillance video that captured the grim scene from about 40 feet away is expected to be one of the main pieces of evidence in a civil trial that commenced last week.

Yoni’s parents, Oded and Anat Gottesman, are seeking damages from 11 different defendants for their son’s death on August 10, 2005. The Gottesmans claim everyone from the corporation that oversees Cathedral Oaks to the lifeguards and counselors on duty that day are responsible for their son’s death. The Gottesmans’ attorney, Barry Cappello, claimed the club operated the camp without a license for years. Cappello also said Richard Berti-owner of Cal-West Group, which operates Cathedral Oaks-would reward employees for keeping costs down, the implication being that this practice endangered clients’ safety. “The defendant corporations and their employees-from the executives down to their young staff-ran an unlicensed daycare activity camp for children on the cheap,” Cappello said.

In a pre-trial conference last week, 10 of the 11 defendants in the case-including Cathedral Oaks Athletic club and staffers-admitted that their negligence led to Gottesman’s death. “We’ve stood up in this case and said, yes, we’re negligent,” said attorney John Levitt, who is representing the majority of the defendants. Cal-West still denies it was negligent, however. But the admission by the others means jurors in the case will largely focus on damages, not on whether the defendants are at fault. The jury also must decide whether all the defendants were also liable for willful misconduct. The amount of damages the Gottesmans are seeking is unknown, though it is thought to be much more than the defendants were willing to settle for.

Yoni Gottesman had been at his first day of summer camp. After arts and crafts, basketball, and tennis, the kids headed to the pool-42 inches deep in the shallowest end-where Yoni, who was only 41 inches tall, swam with about eight other children. Cappello claims that one of the counselors-Sam Shipley, then an 18-year-old-was roughhousing with Yoni. But the clarity of the tape makes it difficult to differentiate the figures in the pool. Levitt claims that Shipley was in the pool but never played with Yoni. The jury has already viewed the tape once and is expected to watch it again during the course of the trial.

During opening arguments that brought several in the courtroom to tears, Cappello told a story of inexperienced lifeguards and counselors who weren’t watching the pool as closely as they should have that day. One lifeguard left his post to get a soda, while two camp counselors, seated behind a lifeguard stand, should have been in the pool with the kids, according to camp rules. Cappello said the lifeguards and counselors weren’t properly trained to do their jobs, a claim that the aquatics director, defendant Esther Clark, admitted in court Monday. Additionally, Cappello alleged, club rules were lax. “This club had very few rules,” Cappello said. “The few rules this camp had were not followed.”

The defendants disagree that their actions constituted willful misconduct; they claim they did not consciously disregard Yoni’s rights or life. Instead, Levitt said in his opening statement, safety was a primary concern. “Not one of the individuals or corporations ever did anything to put him in jeopardy or danger,” he said. Not one person doesn’t regret what happened, he added.

Berti and Cal-West, which he formed in 1985, deny the corporation provided any operational oversight to the club. Instead, they say that each club has its own set of owners and oversight structure. Cal-West attorney Daniel Henderson claimed Berti was told to stay away from day-to-day operations in part because he had terrible people skills. “No one is ducking, no one is hiding,” Henderson said. “Everyone who should be accepting responsibility is.”

More than 130 names appear on the witness list for the trial, which is expected to last well into April. Among the experts scheduled to testify are a doctor for the plaintiffs who will explain how young children can become over-fatigued, as well as an expert for the defense who will explain how people can sometimes not perceive something happening right in front of them. Cappello indicated one of his experts will testify that some of the defendants incorrectly performed CPR on Yoni, and that proper procedures could have saved the child’s life.

With photos of a smiling Yoni in the background and the Gottesmans seated nearby, Cappello told the jury the story of a kind boy who was walking and talking as a one-year-old and of parents who still think of their son when they see children around the age he would have been today. “How do you compensate for the birthdays that are lost?” Cappello said. “How is all that loss and affection compensated for?”

The path that led the Gottesmans to this trial was a long and difficult one. Almost a year after the incident and after being provided with many materials from Oded Gottesman’s own investigation, then-District Attorney Tom Sneddon announced he would not file criminal charges in the case. An investigative team reviewed reports and the surveillance tape and conducted dozens of interviews related to the case. “All of us were fully engaged in this effort,” Sneddon said in a statement at the time.

The DA’s office also determined the Sheriff’s Department’s investigation was not tainted by a prior relationship with Berti, who was a significant donor to a group organized to raise money for the department. Berti’s past relationship with Cappello later became an issue as the case led up to trial. Cappello previously represented embattled developer Bill Levy, with whom Berti sparred for more than 10 years. Berti had been an investor in Levy’s lower State Street condo project and later was sued by Levy for $50 million on grounds that Berti was part of a conspiracy to inflame other investors and nix the deal.

Berti then countersued, charging that Levy and Cappello were abusing the judicial process to keep him from exercising his constitutional right of free speech. But a day before Berti filed his lawsuit, Levy and Cappello withdrew theirs. Berti contended that the damage could not be undone anymore than a bullet could be un-shot. The case went all the way to the California Supreme Court. The justices ultimately dismissed Berti’s case, arguing that an anti-SLAPP (strategic lawsuit against public participation) motion couldn’t be filed against a nonexistent lawsuit.

Last year, Berti filed a motion to disqualify Cappello’s firm from the Gottesman case as a result of its legal past. The motion was denied by the court-a decision reaffirmed by the Court of Appeal.

After the DA decided not to press charges, the Gottesmans beseeched Attorney General Jerry Brown as well as the governor’s office to look into the case and start a Grand Jury investigation. Nothing resulted from the plea. In November 2007, Oded Gottesman, no doubt frustrated at the lack of action by authorities, crashed a party in front of the new District Attorney’s Office being named in Sneddon’s honor. Gottesman shouted protests during the ceremony, but was booed and hushed by the crowd before leaving.

And so, the long road has led to Judge Thomas Anderle’s courtroom almost two years after the lawsuit was filed, and it is now up to a Santa Barbara jury to take up the pain everyone involved in the case has experienced over the last three years.