FILED

NOT FOR PUBLICATION

DEC 07 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSANTO ORDINARIO, No. 16-55417

Plaintiff-Appellant, D.C. No. 3:13-cv-02804-LAB-NLS v.

LVNV FUNDING, LLC and THE MEMORANDUM* BRACHFELD LAW GROUP, PC, a California Corporation,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted December 5, 2017** Pasadena, California

Before: D.W. NELSON and REINHARDT, Circuit Judges, and STEEH,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable George Caram Steeh III, United States District Judge for the Eastern District of Michigan, sitting by designation. Rosanto Ordinario (“Ordinario”) appeals the district court’s denial of his

motion for summary judgment and granting of LVNV Funding, LLC’s (“LVNV”)

motion for summary judgment. We review de novo a district court’s rulings on

cross-motions for summary judgment. Donohue v. Quick Collect, Inc., 592 F.3d

1027, 1030 (9th Cir. 2010). We review de novo “questions of law, including the

district court’s interpretations of the Fair Debt Collection Practices Act (“FDCPA”)

and the Rosenthal Act.” Riggs v. Prober & Raphael, 681 F.3d 1097, 1101 (9th Cir.

2012) (citations and quotations omitted). “We may affirm on any basis supported

by the record.” Afewerki v. Anaya Law Grp., 868 F.3d 771, 778 (9th Cir. 2017).

We have jurisdiction under 28 U.S.C. § 1291. We AFFIRM on the alternative

ground that LVNV’s state court action was not time-barred.

Ordinario’s entire FDCPA and Rosenthal Act action is based on the claim

that LVNV filed a time-barred state court action to collect unpaid credit card debt.

In the state court action, LVNV asserted California common count of indebtedness

on an open book based on an account stated, rather than breach of contract of the

underlying cardholder agreement. An account stated has three elements: “(1)

previous transactions between the parties establishing the relationship of debtor

and creditor; (2) an agreement between the parties, express or implied, on the

amount due from the debtor to the creditor; [and] (3) a promise by the debtor,

2 express or implied, to pay the amount due.” Zinn v. Fred R. Bright Co., 271 Cal.

App. 2d 597, 600 (1969). An account stated may be implied from the

circumstances. Maggio, Inc. v. Neal, 196 Cal. App. 3d 745, 753 (1987) (“The

agreement necessary to establish an account stated need not be express and is

frequently implied from the circumstances. When a statement is rendered to a

debtor and no reply is made in a reasonable time, the law implies an agreement that

the account is correct as rendered.”).

In O’Bryne v. Portfolio Recovery, the district court held that an account

stated existed under similar facts. Case No. 12cv447 2013, WL 1223590, at *5

(S.D. Cal. Mar. 26, 2013). In that case, there was a debtor and creditor relationship

given that Capital One had been sending monthly statements to O’Bryne, and

O’Bryne made payments on them. Id. Capital One then sent a final billing

statement to O’Bryne. Id. The court found that O’Bryne’s failure to dispute the

statement constituted an admission of the balance due. Id. Further, the court stated

that “[a]lthough Plaintiff now claims he never agreed to enter into an account

stated, a party’s intent at the time of contracting controls the formation of a

contract.” Id. at *6. We later affirmed the district court’s holding that an account

stated existed. O’Bryne v. Portfolio Recovery Associates, LLC, 596 F.App’x 565,

3 566 (9th Cir. 2015) (holding that an uncontested final credit card statement

established an account stated).

Here, there was also a debtor and creditor relationship between Ordinario

and Chase given that there were previous transactions between Chase and

Ordinario in the form of monthly statements and subsequent payments.

Ordinario’s final payment was on June 18, 2009. In January 2010, Ordinario

received a final statement. On January 30, 2010, Chase closed Ordinario’s

account. Nothing in the record shows that Ordinario ever disputed the validity of

the debt or the amount owed. Thus, like in O’Bryne, an account stated existed.

“Under California law, a four-year statute of limitations applies to actions

for breach of contract, account stated, and open book account.” Prof’l Collection

Consultants v. Lauron, 8 Cal. App. 5th 958, 966 (Ct. App. 2017), reh’g denied

(Mar. 13, 2017), review denied (Apr. 26, 2017); Cal. Civ. P. Code § 337.

Ordinario conceded as much in his partial summary judgment motion. Further,

“[a]ctions to recover on an account stated or a book account accrue on the date of

the last item or entry in the account.” Prof’l Collection Consultants, Cal. App. 5th

at 966; Cal. Civ. P. Code § 337(2) (“Where an account stated is based upon an

account of more than one item, the time shall begin to run from the date of the last

item.”); R.N.C. Inc. v. Tsegeletos, 231 Cal.App.3d 967, 971-972 (1991) (“the

4 four-year period of limitations on a book account begins as of the last entry in the

book account.”).

Ordinario relies on R.N.C. Inc. v. Tsegeletos to support his contention that

the last item or transaction must be prior to the date the creditor ceases to extend

credit. Contrary to Ordinario’s position, and as the court in Zavala v. Annex

Financial, Inc. analyzed, the court in R.N.C. found “that the debtor and credit

relationship ended when the creditor ‘demanded payment of the full amount then

owed,’ or, in the alternative, when the creditor ‘threatened to turn the debt over to a

collection agency.’” No. 2:12-CV-6988-SVW-MRW, 2013 WL 12113213, at *7

(C.D. Cal. Jan. 15, 2013) (quoting R.N.C., 231 Cal.App.3d at 973). Thus, the more

likely date of last entry was when Chase “assessed various charges to the account

before closing it.” Id. at *6.

Based on the foregoing, the last entry on Ordinario’s account was when

Chase charged a late fee on January 13, 2010 before closing the account on

January 30, 2010.1 LVNV filed the state court action on December 5, 2012, well

within the four year limit. Because LVNV’s state court action was not time-barred,

there was no violation of the FDCPA or Rosenthal Act.

1 Even if the clock started on the date of Ordinario’s last payment on June 18, 2009, the state court action would have still been timely. 5

AFFIRMED.

6