United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge
matter comes before the court on Plaintiff's motion to
appoint counsel. Dkt. # 4. For the reasons that follow, the
Court DENIES the motion.
purchased a condominium in Vallejo, California, on or about
September 29, 2015. Dkt. # 1-10 at 1. On June 8, 2016,
Plaintiff allegedly received two tax assessments from Solano
County, California. See Dkt. # 1-11. Plaintiff
subsequently challenged these taxes, and an assessment of
homeowners' association (HOA) fees, in small claims court
in Solano County. Dkt. # 1-12. After unsuccessfully
litigating his claims in small claims court, Plaintiff filed
the current action. See Dkt. # 1 at 7.
Plaintiff's complaint restates the same grievances
presented to the small claims court: that Defendants
impermissibly assessed and attempted to collect property
taxes and HOA fees. Dkt. # 1 at 3-6.
Plaintiff alleges that he not liable for paying property
taxes because he, as a mortgagor, is not the true owner of
property in question. Dkt. # 1-8 at 1. Plaintiff's theory
is that the mortgage company is responsible for paying
property taxes until he satisfies the mortgage lien.
Id. at 2. Additionally, Plaintiff alleges that he is
not responsible for paying HOA fees on the theory that
California's Davis-Stirling Act-the state statute
allowing HOAs to levy assessments on constituent owners-is
unconstitutional. See id. # 1-8 at 3-6; Cal. Civ.
Code § 4000 et seq. (Section 5600 of the code
specifically provides for the levy of assessments by a HOA).
Plaintiff asserts that HOA fees are actually taxes and that
only the government, in accordance with the Sixteenth
Amendment, is allowed to levy and collect taxes. See
Dkt. # 1-1 at 4.
a person has no right to counsel in civil actions.”
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
Courts, however, do have discretion under 28 U.S.C. §
1915 to appoint counsel for indigent parties in civil
actions. See 28 U.S.C. § 1915(e)(1); United
States v. McQuade, 579 F.2d 1180, 1181 (9th Cir. 1978).
A court's decision to appoint counsel for a litigant in a
civil action “is a privilege and not a right.”
United States v. Madden, 352 F.2d 792, 793 (9th Cir.
1965). Courts only exercise their discretion to appoint
counsel in “exceptional circumstances.”
Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103
(9th Cir. 2004) (quoting Franklin v. Murphy, 745
F.2d 1221, 1235 (9th Cir. 1983)).
determining whether “exceptional circumstances”
exist, courts weigh “the [petitioner's] likelihood
of success on the merits as well as the ability of the
petitioner to articulate his claims pro se in light
of the complexity of the legal issues involved.”
Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983);
see also Agymen, 290 F.3d at 1104 (finding
“exceptional circumstances” in a case involving a
complex legal theory); Bryd v. Maricopa Cnty. Bd. Of
Supervisors, 845 F.3d 919, 925 (9th Cir. 2017) (finding
“exceptional circumstances” in the case of a
plaintiff with a viable claim but a “limited ability to
articulate his claims pro se”); Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (finding no
“exceptional circumstances” when the petitioner
“demonstrated sufficient writing ability and legal
knowledge” and the issue was not of “substantial
complexity”). Neither of the Weygandt factors
are dispositive on their own; courts must consider both
before deciding whether to grant a motion to appoint counsel.
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.
1986). The fact that a pro se litigant would be
“better served with the assistance of counsel” is
not enough, on its own, for the appointment of counsel for a
civil case. See Rand v. Roland, 113 F.3d 1520, 1525
(9th Cir. 1997), overruled on other grounds, 154
F.3d 952 (9th Cir. 1998). Instead, the petitioner seeking
representation bears the burden of demonstrating exceptional
circumstances necessitating the appointment of counsel.
Manson v. Washington Health Care. Auth., No.
C17-0207-JLR, 2017 WL 1198370, at *1 (W.D. Wash. Mar. 31,
2017) (citing Brogdon v. City of Phoenix Dep't,
No. CV-11-01389-PHX-RCB(MEA), 2013 WL 3155116, at *1 (D.
Ariz. June 19, 2013).
initial matter, Plaintiff qualifies as an indigent person in
a civil proceeding that might qualify for the appointment of
counsel. See Dkt. # 2 (Order Granting Application to
Proceed In Forma Pauperis). Plaintiff's pleadings,
though, do not indicate an extraordinary circumstance
necessitating the appointment of counsel. Plaintiff's
pleadings do not demonstrate a likelihood of success on the
merits or an inability to proceed without the appointment of
Likelihood of Plaintiff's Success on the Merits
Plaintiff claims he does not have to pay property taxes on
his condominium because the lender is the true owner of the
real property. This is legally incorrect. While it is true
that Plaintiff does hold a deed of ownership of the
condominium, this does not absolve Plaintiff, under
California law, of a responsibility to pay property taxes.
See Sav. & Loan Soc. v. Austin, 46 Cal. 415, 485
(Cal. 1873) (“We all know, as a matter of general
notoriety, that almost universally . . . the mortgagor is
required to pay tax . . . on the land[.]”); Osuna
v. Albertson, 184 Cal.Rptr.3d 338, 341 (Cal.Ct.App. July
22, 1982) (a mortgagor who fails to pay property taxes is
liable to a mortgagee in an action for waste). Not only is
Plaintiff's position legally incorrect, it is also
refuted by Plaintiff's own admissions. See Dkt.
# 1-12 at 1-2 (Plaintiff admitted to signing a mortgage with
the condition that he “pay the general property tax
through the lending company.”).
Plaintiff claims he is not responsible for paying HOA fees
because those fees are analogous to taxes and only the
government, not private entities, can levy taxes. Plaintiff
uses the Sixteenth Amendment to buttress this claim.
Plaintiff is mistaken for multiple reasons. First, the
Sixteenth Amendment only allows the federal government to
levy taxes on income; this Amendment has no bearing on a
municipal corporation's power to levy and collect
property taxes. See U.S. Const. amend. XVI. Second,
California Civil Code § 5600 permits common interest
developments to levy regular assessments to cover their
expenses. These assessments are not taxes as Plaintiff
claims, but rather lawful fees imposed by a state-authorized
homeowners' association against its constituent members.
foregoing reasons, Plaintiff does not have a high likelihood
of success on the merits warranting the court appointment of
Plaintiff's Ability to ...