Kim v. Kim

Opinion

IN THE SUPERIOR COURT OF GUAM

HO SOON KIM, DOMESTIC CASE NO. DM0165-20 Plaintiff, vs. DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR ORDER ALLOWING SERVICE P SOON KAP KIM, PUBLICATION

Defendant.

This matter is before the Honorable Dana A. Gutierrez pursuant to Plaintiff Ho Soon Kim’s (“Plaintiff”) Motion for Order Allowing Service by Publication (“Motion”). Attorney Edward C. Han represents Plaintiff, and Defendant Soon Kap Kim (“Defendant”) has not yet been served or made an appearance. Based on a review of the record and applicable law, the Court hereby DENIES Plaintiff’s Motion.

DISCUSSION

Plaintiff’s Motion alleges that Defendant is not in Guam and after due diligence cannot be found in Guam. Motion (Sept. 15, 2020). The accompanying declaration to the Motion states that Defendant’s last known mailing address is PO Box 8319, Tamuning, Guam 96931 and that Plaintiff believes Defendant has left the island. Decl. of Edward Han (Sept. 15, 2020).

Rule 4 of the Guam Rules of Civil Procedure (“GRCP”) only allows for service through publication and mailing as permitted by statute or court order. GRCP Rule 4(o). Title 7 GCA § 14106 is the controlling statute, and specifically allows for service by publication and mailing instead of personal

service under GRCP Rule 4(e)(i) or (2), only when “the person on whom service is to be made has DECISION AND ORDER (Plaintiff’s Motion for Order Allowing Service by Publication) DM0165-20,; Ho Soon Kim vs. Soon Kap Kim

departed from Guam, and cannot, after due diligence, be found in Guam, or conceals himself to avoid the service of summons . . . or who, after due diligence, cannot be found in Guam, and the fact appears by affidavit to the satisfaction of the court.” 7 GCA § 14106.

Personal delivery of service is the gold standard of available service methods, and is “always adequate in any type of proceeding.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). The notions of fair play and due process require that substituted service by publication be “a last resort when reasonable diligence to locate a person in order to give him notice” have been made “before resorting to the fictional notice afforded by publication[.]” Calvert v. Al Binali, 29 Cal. App. Sth 954, 241 Cal. Rptr. 3d 42, 49-50 (Cal. App. 2018) (internal citations omitted); see Watts v. Crawford, 896 P.2d 807, 811 (Cal. 1995).

When serving a summons, “[a]ll means other than personal delivery to the defendant are considered substituted service, and personal service must have been diligently attempted before substituted service may be performed.” Bonita Packing Co. v. O'Sullivan, 165 F.R.D. 610, 613 (C.D. Cal. 1995). The supporting affidavit for a request to serve by publication must show in detail the probative facts indicating a thorough search to locate the defendant, including the dates of any attempts to serve the defendant by another method of service. See Kahn v. Matthai, 115 Cal. 689, 692, 47 P. 698, 691-93 (Cal. 1897). Thus, an affidavit that does not include this information is “fatally defective in failing to show with accuracy the efforts made to serve defendant with summons.” See id. at 692.

Here, Plaintiff’s affidavit identifies a last known address for Defendant which is located in Guam and states that Plaintiff believes Defendant has left the island. The affidavit does not include any details as to how or why Plaintiff has come to this conclusion, nor does it detail any efforts made to locate Defendant. Accordingly, this Court finds that Plaintiff fails to present sufficient information to avail of

resort to service by publication. It is improper for Plaintiff to request for service by publication and DECISION AND ORDER (Plaintiff’s Motion for Order Allowing Service by Publication) DM0165-20; Ho Soon Kim vs. Soon Kap Kim

mailing on the Defendant prior to Plaintiff exercising due diligence to serve Defendant by other means reasonably calculated to give actual notice, and detailing such efforts by affidavit. CONCLUSION For the foregoing reasons, Plaintiff’s Motion for Order Allowing Service by Publication is hereby DENIED. SO ORDERED this 29th day of March, 2021.

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HONORABLE DANA . GUTIPRREZ Judge,.Su rior | ourtof Guam