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McMahon v. El Camino Community College District1/31/2002
; he need only show that he had reasonably based suspicions of a false claim." (LeVine v. Weis (2001) 90 Cal.App.4th 201, 209-210.)
While section 12654, subdivision (a), provides a statute of limitation for civil actions under section 12652, neither section 12654 nor any other provision of the False Claim Act provides a statute of limitation for the employee's action for retaliation under section 12653. Both section 12653 and section 12654 were enacted at the same time in 1987. The unambiguous language of section 12654, subdivision (a), -- i.e., its failure to specifically mention an action under section 12653 -- indicates that the Legislature did not intend the limitations periods set out in section 12654 to apply to an employee's action for retaliation under section 12653. "In other words, a statute that enumerates things upon which it operates is to be construed as excluding from its effect all those things not expressly mentioned." (Embarcadero Mun. Improvement Dist. v. County of Santa Barbara (2001) 88 Cal.App.4th 781, 793.)
To determine the statute of limitation which applies to a cause of action, it is necessary to identify the nature of the cause of action, i.e., the "gravamen" of the cause of action. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22.) The nature of the right sued upon and not the form of action nor the relief demanded determines the application of the statute of limitations under our code. (Id. at p. 23.) "What is significant for statute of limitations purposes is the primary interest invaded by defendant's wrongful conduct." (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1207.)
The "gravamen" of a claim under section 12653 is not the protection of the public fisc, or even a false claim, which is not a necessary element of the section 12653 action (LeVine v. Weis, supra, 90 Cal.App.4th at pp. 209-210); rather, the gravamen of the claim is the wrongful termination of an employee in violation of public policy; the public policy is that set out in the False Claims Act. The language of section 12654, subdivision (a), clearly contemplates that it applies only to those cases involving commission of an actual violation of section 12651. (See fn. 5, ante.) Accordingly, the statute of limitation set out in section 12654, subdivision (a), is not applicable here under the "gravamen" test.
The court in Barton held that the statute of limitations for a tort action for wrongful discharge in violation of public policy is the one-year period provided by Code of Civil Procedure section 340, subdivision (3). (Barton v. New United Motor Manufacturing, Inc., supra, 43 Cal.App.4th at p. 1203 [employee complained to employer about unsafe working conditions].) The court explained that an action for wrongful discharge in violation of public policy implicates a "personal right" within the scope of Code of Civil Procedure section 340, subdivision (3), and not a property right within the two-year limitation of Code of Civil Procedure section 339, subdivision 1. "An action for wrongful discharge in violation of public policy must be predicated on a policy that concerns society at large rather than the individual interests of the employer or employee. [Citations.] At the same time, the essential nature of the action is the protection of certain personal rights deemed to be of fundamental public importance, not the protection of property rights." (43 Cal.App.4th at p. 1208.) The court in Barton thus concluded that "Because the primary nature of the right sued upon in a Tameny wrongful termination action is personal, the trial court in this case correctly applied the one-year statute of limitations specified in section 340 (3)." (Id. at p. 1209.
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