Kalashnikov v. Salt Lake City

2016 UT App 213

THE UTAH COURT OF APPEALS

EARL AL KALASHNIKOV,
Appellant,
v.
SALT LAKE CITY, ET AL.,1
Appellees.

Per Curiam Decision
No. 20160421-CA
Filed October 27, 2016

Third District Court, Salt Lake Department
The Honorable Heather Brereton
No. 140908664

Earl Al Kalashnikov, Appellant Pro Se
Shawn T. Richards and Jackie Pilling, Attorneys
for Appellees

Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and JILL
M. POHLMAN.

PER CURIAM:

¶1 Earl Al Kalashnikov seeks review of the district court’s
various orders resulting in the dismissal of all of the defendants
in the action. This matter is before the court on Appellees’
motion for summary disposition on the basis that the issues
raised by Kalashnikov are ‚so insubstantial as not to merit
further proceedings and consideration‛ by the court. Utah R.
App. P. 10(a)(2)(A). We affirm.

1. The parties on appeal are not limited to those listed, but also
include other parties whose names appear on the notice of
appeal or who have otherwise entered appearances in this court.
Kalashnikov v. Salt Lake City

¶2 Kalashnikov filed a complaint against various parties
claiming that security officials accosted him at the Salt Lake City
Main Library. Kalashnikov averred in the complaint that as a
result of his interaction with the security officials he suffered
irreparable physical and mental injuries that also severely
aggravated certain preexisting medical and psychological
conditions. During the course of the litigation, the defendants
each sought dismissal of the claims based on various grounds.
The district court granted each of the defendants’ motions.

¶3 Kalashnikov named Adam Kerbs as a defendant in his
amended complaint. Kerbs had an ownership interest in
Confidential Background Investigations, Inc. (CBI), the company
that employed the individuals that Kalshnikov claimed accosted
him. However, Kalashnikov failed to allege any specific
allegations against Kerbs in the amended complaint. As a result,
Kerbs filed a motion for judgment on the pleadings. In response
to the motion, Kalashnikov attempted to raise a theory of
liability that was not set forth in the amended complaint. The
district court refused to consider the theory because the theory of
liability and the facts underlying that theory were not in the
amended complaint. See Lucas v. Wells Fargo Bank, N.A., 2013 UT
App 117, ¶ 13, 302 P.3d 1240 (stating that it is well settled that it
is within the district court’s discretion whether to accept extra-
pleading matters in response to a motion for judgment on the
pleadings). Kalashnikov has failed to demonstrate that the
district court exceeded its discretion in refusing to consider
materials outside of the complaint, especially because the
complaint had already been amended. Therefore, because the
complaint contained no allegations against Kerbs, the district
court correctly granted the motion for judgment on the
pleadings.

¶4 Kalashnikov also brought claims against Salt Lake City
Corporation, the Salt Lake City Public Library System, and Cindi

20160421-CA 2 2016 UT App 213
Kalashnikov v. Salt Lake City

Mansell, the Salt Lake City Recorder.2 These Salt Lake City
Defendants filed a motion for a judgment on the pleadings
because Kalashnikov failed to comply with the requirements of
the Utah Governmental Immunity Act. Kalashnikov never filed
notices of claim pursuant to the Governmental Immunity Act.
See Utah Code Ann. § 63G-7-401(2) (LexisNexis 2014) (stating
that a notice of claim must be filed with a governmental entity
before maintaining an action against that entity). Claims against
a governmental entity are barred ‚unless notice of claim is filed
. . . within one year after the claim arises.‛ Id. § 63G-7-402.
Because Kalashnikov failed to file a notice of claim with the
governmental defendants, the district court correctly dismissed
the claims because it lacked jurisdiction over them.

¶5 Finally, CBI filed a motion for summary judgment after
Kalashnikov failed to designate an expert to prove that CBI’s
actions caused the injuries Kalashnikov claimed. Specifically,
CBI argued that it was impossible for a lay person to know,
absent speculation, whether the conduct of CBI employees
caused Kalashnikov’s alleged irreparable physical and mental
injuries or exacerbated his prior physical and mental conditions,
both of which allegedly required ongoing treatment and care.
Under Utah law, when a plaintiff’s injury ‚involves obscure
medical factors which are beyond an ordinary lay person’s
knowledge, necessitating speculation in making a finding, there
must be expert testimony that the negligent act probably caused
the injury.‛ Hansen v. Harper Excavating, Inc., 2014 UT App 180,
¶ 10, 332 P.3d 969 (citation and internal quotation marks

2. Kalashnikov acknowledged to the district court that he
asserted no claims against Mansell individually and that Mansell
was named as a defendant solely based on the service of process
requirement set forth in rule 4 of the Utah Rules of Civil
Procedure. Accordingly, the district court properly dismissed
Mansell from the litigation because no claim was asserted
against her. See Utah R. Civ. P. 12(b)(6).

20160421-CA 3 2016 UT App 213
Kalashnikov v. Salt Lake City

omitted). ‚It is only in ‘the most obvious cases’ that a plaintiff
may be excepted from the requirement of using expert testimony
to prove causation.‛ Fox v. Brigham Young Univ., 2007 UT App
406, ¶ 22, 176 P.3d 446 (citation omitted). Here, the injuries
alleged required expert testimony to prove causation. Without
an expert a jury would be left to speculate as to what damages
were the result of CBI’s alleged actions and what would be
attributable to Kalashnikov’s preexisting conditions, which
included a history of anxiety and mental illness. The district
court correctly determined that an expert was required to link
the alleged conduct to the claimed injuries.

¶6 Affirmed.

20160421-CA 4 2016 UT App 213