In order to facilitate their settlement efforts, counsel for the parties have asked for the court’s guidance in resolving a dispute regarding the applicable statute of limitations for the plaintiff’s claims in the complaint. As the court understands it, the defendant claims that all of plaintiff’s claims that arose more than two years prior to the filing of the complaint are barred by the two-year statute of limitations for obligations based upon an oral agreement. On the other hand, the plaintiff believes that the claims are governed by the four-year statute of limitations for obligations based upon a book account and/or an account stated.

To determine the applicable statute of limitations, it is necessary to identify the nature or “gravamen” of the cause of action. Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22-23. The nature of the right sued upon or the principal purpose of the action, rather than the form or action or the relief demanded, determines the applicable statute of limitations. Davies v. Krasna (1975) 14 Cal.3d 502, 515.

The cause of action pled is not determinative of the nature of the right sued upon; nor is the form of the action or relief demanded in the complaint. Day v. Greene (1963) 59 Cal.2d 404, 411.

Common counts are merely pleading devices, and the suit is subject to whatever statute of limitations governs the underlying claim. For example, a common count “for services rendered” pursuant to an unenforceable written agreement is subject to the 2-year statute of limitations governing liability not based on an instrument in writing. (CCP § 339(1); Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 996.)

A “book account,” or “open book account” is governed by a 4-year statute of limitations, as is an account stated in writing (even if acknowledged orally. However, a book account is a detailed statement that constitutes the principal record of the transactions between the creditor and debtor arising out of a contract, and details the debits and the credits in connection with the relationship. (CCP 338a; see Tillson v. Peters (1940) 41 Cal.App.2d 671, 678 – a ledger crediting defendant with payments received is not sufficient.)

An “account stated” is “a document – a writing – which exhibits the state of account between parties and the balance owing from one to the other; and when assented to, either expressly or impliedly, it becomes a new contract.” (Coffee v. Williams (1894) 103 Cal. 550, 556; Biltmore Press v. Usadel (1970) 6 Cal.App.3d 896, 900.) The debtor’s assent or acknowledgement of the account need not be in writing. (CCP § 337(2).)

Here, plaintiff alleges in its complaint that plaintiff had been performing roofing repairs and replacements for defendant’s properties since in or about 2000; that work expected to cost more than $1,500 was initiated by requesting that plaintiff provide it with an estimate; that upon receiving the estimate, plaintiff would prepare a written contract and present it to defendant; “sometimes” plaintiff commenced the work without a formal written contract due to the relationship of the parties; upon completion of the work, plaintiff’s invoice (often accompanied by a copy of the work permit and signed final inspection) would become a “final realization” of the amount owed by defendant.

Based upon the foregoing, and without having heard any of the evidence yet, it appears that what is described in the complaint is a series of written and oral contracts between the parties, as opposed to a true open book account and/or an account stated. Certainly, the summary of allegedly unpaid invoices attached to the complaint as Exhibit 1, does not appear to constitute either an open book account or an account stated. It merely appears to be a summary of what the plaintiff believes it is owed by the defendant, and appears to have been prepared in contemplation of litigation, as opposed to a detailed statement constituting the principal record of the transactions between the parties which details the debits and credits in connection with the relationship, and against whom and in favor of whom the entries are made. A book account must be made in the regular course of business as conducted by the creditor in a reasonably permanent form and manner. (CCP § 337a.)