What is the test for tolling the statute of limitations on an open book account?

California, United States of America


The following excerpt is from R. Inc. v. Tsegeletos, 231 Cal.App.3d 967, 283 Cal.Rptr. 48 (Cal. App. 1991):

4 The court went on to make a finding which does not appear accurately to reflect the law, but which has no particular impact on the result of the present case. Thus, the court held, "In most of the states a partial payment upon an account tolls the statute. The rule is otherwise in this state, because of section 360 of the Code of Civil Procedure requiring a written acknowledgment, but it is a reasonable construction of the legislation fixing a different period of limitation upon an 'open book account' from an ordinary account to hold that the payment made and entered upon the open book account tolls the statute. It follows that the statute of limitations began to run on this account on August 13, 1914, and that the amended complaint filed May 15, 1918, was within the four years." (Id. at p. 763, 200 P. 625, emphasis added.) The use of the word "toll" was perhaps inartful because, by the relationship of the parties, the statute of limitations did not begin to run until August 13, 1914, not because it was "tolled," but because by the apparent understanding between the parties, the default did not occur until that date. The court evidently was attempting to explain that, unlike the usual debt which is fully due and owing as of the date it is created, an open book account may contemplate that the date of potential default will be deferred. If we were to take the court's mention of tolling at face value, however, it would follow that the limitations period ordinarily would begin as of the date of the last debit, but was tolled by a subsequent partial payment. It has already been established that . "a payment by a principal debtor will not operate to toll the statute of limitations as to a guarantor." (Purdy v. Maree, supra, 31 Cal.App.2d at 127, 87 P.2d 390.) Thus, taking the discussion in Furlow at face value, the statute of limitations would have begun to run against the guarantors here as of the date of the last debit, again in December 1980.

Other Questions


Does section 360.5 of the California Statute of limitations bar a plaintiff from bringing a claim against the statute of limitations? (California, United States of America)
Does the statute of limitations applicable to this cause of action, the Government Tort Claims Act, preclude a plaintiff from bringing an action against a governmental entity within the applicable statute of limitation? (California, United States of America)
Does the statute of limitations stop running during the duration of a tolling event? (California, United States of America)
When harmonizing two statutes relating to the same subject, can a particular or specific statute take precedence over a conflicting general statute? (California, United States of America)
How has the statute of limitations been interpreted in the context of an accounting claim? (California, United States of America)
When will the statute of limitations be tolled as to claims against an absent defendant? (California, United States of America)
What is the tolling of the statute of limitations in medical malpractice cases? (California, United States of America)
How would the statute of limitations for sexual abuse be tolled if a defendant turned 26 during a time of war? (California, United States of America)
What is the test for equitable tolling in a limitation statute? (California, United States of America)
What is the tolling of the statute of limitations for a third party lawsuit? (California, United States of America)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.