GILBERT, P.J.
Estate of Claeyssens (2008) 161 Cal.App.4th 465 determined that a statutory probate filing fee based on the value of the estate is an unconstitutional estate tax. Plaintiff brought this class action against the Judicial Council of California (Council) and the Administrative Office of the Courts (AOC) to recover the fees paid under the unconstitutional scheme. The trial court sustained the defendants' demurrer without leave to amend. Plaintiff appeals the ensuing judgment. We affirm.
FACTS
Richard Hart is the executor of the Estate of Douglas Vickers Hart. On September 26, 2006, Hart advanced the initial probate filing fee of $4, 635 on behalf of the estate. The estate reimbursed him for that amount. On August 9, 2007, Hart paid a supplemental filing fee of $1, 850.08. The record does not show he was reimbursed for that amount. The filing fees were based on the value of the estate pursuant to Government Code former sections 26827 (now section 70650) and 68087.
In March of 2008, we issued our opinion in Estate of Claeyssens, supra, 161 Cal.App.4th 465. There we held that a probate filing fee based on the value of the estate is an unlawful estate tax.
After Claeyssens, Hart filed a claim with the Council and the AOC, seeking a refund of $6, 405.85 plus interest. The Council and AOC rejected the claim, pointing out that a procedure exists for obtaining a refund from the Ventura County Superior Court. The superior court wrote to Hart stating that persons who believe they are entitled to a refund should either request a refund in the petition for final distribution or file a motion for a refund.
Instead of applying to the superior court, Hart filed the instant class action against the Council and AOC for a return of fees above the $320 statutory minimum. The complaint alleged causes of action for declaratory relief, conversion, unjust enrichment, violation of Civil Code section 2224 and claim for money had and received.
The declaratory relief cause of action requests the trial court to confirm that the filing fees were illegally imposed and to order the Council and AOC to: deposit into court all moneys to be refunded; establish a procedure for submitting claims; and notify class plaintiffs and affected consumers. The remaining causes of action simply seek to establish a legal theory for recovering the overpayment.
The Council and AOC demurred. The trial court took judicial notice of the probate court record and the official communications informing Hart of the procedure for obtaining a refund. The court also took judicial notice that the Los Angeles and Orange Counties Superior Courts have a simple procedure to apply for refunds. The trial court sustained the demurrer.
DISCUSSION
The function of a demurrer is to test the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In assessing the sufficiency of a demurrer, all facts pleaded in the complaint must be deemed true. (Holland v. Thacher (1988) 199 Cal.App.3d 924, 928.) But we do not assume the truth of contentions, deductions or conclusions of fact or law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) If upon consideration of all the facts stated it appears that the plaintiff is entitled to any relief, the complaint will be held good. (Chase Chemical Co. v. Hartford Accident & Indemnity Co. (1984) 159 Cal.App.3d 229, 242.)
Cooley v. County of Calaveras (1898) 121 Cal. 482, cited by respondents, is instructive. There a statute limited the compensation of a justice of the peace to $3 for each criminal action. Plaintiff justice of the peace submitted a claim for compensation to the county in an amount based on the statute. The county paid the claim. Thereafter the statute was declared unconstitutional. Plaintiff submitted a claim for additional compensation. In holding plaintiff was not entitled to recover additional compensation, the court, quoting Chancellor Kent, stated: "'The courts do not undertake to relieve parties from their acts and deeds fairly done on a full knowledge of facts, though under a mistake of law.... And to permit a subsequent judicial decision in any one case on a point of law to open and annul everything that has been done in other cases of a like kind for years before, under a different understanding of the law, would lead to the most mischievous consequences. Fortunately for the peace and happiness of mankind, no such pernicious precedent is to be found.'" (Id. at p. 486, quoting Chancellor Kent in Lyon v. Richmond, 2 Johns.Ch. 51 (N.Y.) (1816).)
Hart argues that Cooley can be distinguished because it was based on contract. The court in Bank of America v. Department of Mental Hygiene (1966) 246 Cal.App.2d 578, 587, rejected that argument. There plaintiff brought an action to recover money paid to the California Department of Mental Hygiene. The statute under which the money was paid was later declared unconstitutional. The Court of Appeal, relying on Cooley, stated, "[N]o recovery can be had of moneys paid under an unconstitutional statute." (Ibid.; see also Campbell v. Rainey (1932) 127 Cal.App. 747, 749-750 [assessment imposed by the State Superintendent of Banks under statute later declared unconstitutional cannot be recovered]; Mitchell v. National Auto. & Casualty Ins. Co. (1974) 38 Cal.App.3d 599 [bail bond premium paid on penalty assessed under statute later declared unconstitutional cannot be recovered].)
Wingerter v. City & County of San Francisco (1901) 134 Cal. 547 is noteworthy. A statute directed the county clerk upon the filing of an inventory and appraisement of an estate to collect a fee of $1 for each $1, 000 of appraised valuation. Plaintiff paid the fee. Thereafter the statute was declared unconstitutional. The court, relying on Cooley, held plaintiff was not entitled to recover the fee.
Cases have allowed recovery where money has been paid under express protest. (See Estate of Claeyssens, supra, 161 Cal.App.4th at p. 468.) Thus, in Lewis v. City & County of San Francisco (1905) 2 Cal.App. 112, 115, the court allowed the return of fees where the exaction of the fees by a clerk was "against the protest of a party...."
In Trower v. City & County of San Francisco (1907) 152 Cal. 479, plaintiff challenged the same probate fees paid under the same statute as was involved in Wingerter. This time, however, the court determined the fees should be refunded. A respondent's brief was not filed. The Supreme Court assumed the payment was not voluntary and cited Lewis for the rule that payments under protest are refundable.
Cases decided after Trower hold that where no express protest is made, the payments are not refundable. (See Bank of America v. Department of Mental Hygiene, supra, 246 Cal.App.2d at p. 587 [citing Wingerter]; Campbell v. Rainey, supra, 127 Cal.App. at p. 750 [citing Wingerter]; Mitchell v. National Auto. & Casualty Ins. Co., supra, 38 Cal.App.3d 599.)
We need not decide whether these cases are distinguishable from the facts alleged here. Respondents point out that trial courts in various counties, including Ventura, have established procedures to facilitate refunds of filing fees paid in violation of the rule in Claeyssens. The trial court properly sustained the demurrer to all of Hart's causes of action because the parties acted under a mistake of law. Under the unique circumstances here, it may be best to let sleeping dogs lie.
The judgment is affirmed. Costs are awarded to respondents.
We concur: COFFEE, J., PERREN, J.
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