Consumer Cause, Inc. v. Smilecare

Dist., Aug. Div. One. B147727.Second 2001.] [No. CAUSE, INC., v.

CONSUMER Plaintiff Appellant, al., SMILECARE et Defendants and Respondents. for partial publication.*] certified

[Opinion Court, 976(b) opinion this is certified * Pursuant Rules rules to California majority opinion. in the section exception part C Discussion publication with Counsel Plaintiff and

Law Offices of Morse Mehrban and Morse Mehrban for Appellant. General, Frank,

Bill Richard M. Chief Assistant Lockyer, Attorney Attorney General, General, Theodora Attorney Craig Assistant Berger, Thompson, General, for the Edward G. Weil and Susan S. Fiering, Deputy Attorneys Plaintiff and State of California as Amicus Curiae on behalf of Appellant. Rauth, Yocca Carlson & Randall J. Sherman and W. Stradling Adym for Defendants and Rygmyr Respondents.

Opinion action, MALLANO, Plaintiff filed this a of the Safe violation alleging J. Water and Toxic Enforcement Act as Drinking known commonly defendants, care, 65. Plaintiff of dental Proposition alleged providers violated act to warn and that standard by failing employees patients also called “silver contain amalgam fillings, fillings,” mercury which are toxins. The trial court defend- compounds, granted reproductive ants’ motion for an which was based on affirmative summary judgment, defense.

We conclude that the trial court the burden of producing misapplied evidence in the motion. Defendants had an initial burden of granting pro- duction to make a facie that the affirmative defense prima applied. Because defendants made no such the burden did not shift to showing, to raise a triable issue. we reverse. plaintiff Accordingly, Amalgam Controversy

The Dental the use of silver is new. “In dental offices nothing Concern over fillings world, are treated holes in teeth and around cavities by drilling patients’ the abscesses with a known as dental filling amalgam filling. compound of a mixture of Also known as ‘silver dental is fillings,’ amalgam composed silver, 45 to 52 mercury, varying portions copper, percent percent metal, and tin. is used in the mixture heavy amalgam zinc Mercury, because, state, it is free when combined with other its although liquid metals, minutes and the mixture it forms that hardens within paste provides Overall, with and cohesiveness. material strength amalgam popular durable, it is strong, relatively cavities because filling inexpensive. is used in about half of 200 million Amalgam cavity-filling procedures are done such while other half of with annually, cavity fillings performed materials as ceramics and gold, plastics.

“The modem dental was introduced in 1812 British chemist amalgam by of coins and Bell as a silver which was a combination Joseph paste, mercury. 1800s, however, In the United States concern of the Ameri- during [the] led to can of Dental Society Surgeons regarding possible mercury toxicity addition, an In all Society issue mercury usage becoming malpractice. materi- members were forced to an oath not to use sign mercury-containing Nonetheless, increased, because it offered den- als. use mercury fillings and because the to use fillings tists economic were advantage[,] simple and durable in the mouth. the American of Dental Sur- By Society forced to disband due to caused was geons dwindling membership debate issue. In its rose the American Dental filling over mercury place , . founded dentists who advocated silver Association . . which was . . . use amalgam-mercury dentistry. [H] [H] studies have that dental amal- “Over few several past years, reported leak small amounts of into the oral fillings continuously gam dental is further . . . of the from cavity. mercury fillings Vaporization tooth and of hot After intensified by chewing, brushing consumption liquids. or tooth it takes almost minutes for the rate of brushing, ninety mastication addition, to decline level. In a greater mercury vaporization pre-chewing area higher number of over surface even fillings larger chewing lead[s] of mercury. levels filled teeth increases the level have demonstrated brushing

“[S]tudies air, and that when indi- mercury, in mercury expired exposed vapor of the Even human inhale and absorb as much as 80 percent vapors. viduals that brain and tissues contain kidney signifi- evidence has indicated autopsy individuals and mercury fillings, amounts of with higher mercury cantly mercury fillings the concentration of in the brain of with mercury subjects with the number of fillings directly present. correlate[s] and that dental monkeys suggests “Recent on sheep experimentation in all tissues on the adult and is at its level highest accumulates mercury fact, human studies shown an associa- and liver. In have kidney recently excretion and the of mercury fillings. tion between urinary mercury presence human studies. Of corroborate the results of autopsy particular These results interest, child. In on the unborn fillings is the effect mercury potential in the teeth of mercury studies were installed fillings pregnant sheep, where accumulate in the to cross the and developing was shown amalgam placenta was found at installation. filling’s mercury fetus within two days milk, level in the fetal liver and the mother’s suggesting highest additional form of transmission newborns. decades, more concerns have been raised about two

“During past medical side effects from the in dental mercury amalgam adverse possible for a It has been fillings. suggested mercury exposure responsible ill effects in some immune including wide variety systemic patients, renal obstetric mul- neurotoxicity, complications, suppression, impairment, headache, and such as and fatigue sclerosis conditional tiple symptoms (Miller, Human and Mercury Environmental depression.” Amalgam Fillings: Health Care Issues the Dental 1 DePaul J. L. Facing Profession 355-359, omitted.) fns. children are more sensitive to than adults. “Very young Mercury in the mother’s to the fetus and accumulate there. It can body passes may However, also . . . to a infant breast milk. the benefits pass nursing through of breast be than the adverse effects of feeding may greater possible in breast milk. harmful effects that be from the mother to the

“Mercury’s may passed retardation, incoordination, blindness, fetus include brain mental damage, seizures, and Children inability speak. poisoned by mercury may develop their nervous problems digestive systems, kidney damage.” [with] 1999) for Toxic Substances and Disease (Agency Chemical Registry (Apr. 7439-97-6, Abstracts Service No. <http://www.atsdr.cdc.gov/tfacts46.html> 8, 2001].) of Aug. [as studies,

One which summarizes the report, surveys, findings has concluded: from women crosses papers, “Mercury amalgam pregnant blood, liver, and in amniotic fluid and fetal and placenta appears within 2 is often stored in gland days Mercury pituitary placement.... milk and than that in the mother’s breast fetus much levels higher [in] tissues .... level is in the of the fetus which highest gland pituitary endocrine, immune, and affects development reproductive systems.” II, (Dental (Windham edit.) Facts No. <http:// Scientific Amalgam pt. 8, 2001], ci- www.web-light.nl/AMALGAM/EN/frame_r.html> Aug. [as fetus, omitted.) “The in the brain tissue of the new tations level of mercury bom, and children is to the number of amalgam young directly proportional (Id., 18.) in the

surfaces mother’s mouth.” No. has an effect on the “Mercury adults, fetal nervous at levels far below that considered toxic in and system in mothers correlate with inci- background significantly [levels] Ill, (Id., 16.) dence of birth defects and still births . . . .” No. pt. But dental is not without its The American Dental amalgam supporters. 11, 2001, (ADA) Association has its use. As as long recently May approved the ADA a “Statement on Dental “Dental amal- issued Amalgam,” saying: safe, (silver is considered a affordable and durable material that gam filling) has been the teeth of more It used restore than 100 million Americans. silver, tin, contains a mixture of metals such as in addition to and copper hard, binds these into a stable and mercury, chemically components and, Dental safe substance. has been used for more than 150 amalgam years time, has established an reviewed record of during extensively safety and effectiveness.

“Issued in late the FDI World Dental Federation and the World stated, Health consensus 'statement on dental ‘No Organization amalgam controlled studies have been adverse ef- published demonstrating systemic that, from aside from fects restorations.’ The document also states amalgam reactions, rare instances of local side effects of ‘the small amount of allergic restorations, released from amalgam especially during placement removal, and has not been shown to cause . . . adverse health effects.’ “The ADA’s Council on Scientific Affairs’ on its review of 1998 report the recent literature on ‘The Council concludes scientific states: amalgam that, information, based on available scientific continues to be a amalgam states, and restorative material.’ The Council’s also safe effective report the use of ‘There to be no currently appears justification discontinuing . . dental . amalgam.’ [H] fl[] there is no

“The U.S. Public Health Service issued a in 1993 stating report in the rare case of the extremely health reason not to use amalgam, except This amalgam. who is allergic component supports patient Administration, the National Institutes of Food findings Drug Institute of Health Assessment Conference and the National Technology Research, Dental and Craniofacial that dental is a safe effec- amalgam addition, noted, material. In Consumer tive restorative Reports best bet.’ ‘Given their solid track record . . . are still amalgam fillings your Administration’s Dental Products Panel “In the U.S. Food Drug harm to from amalgams found no valid data to demonstrate clinical patients health effects or reverse them removed would adverse having or prevent

461 found in the course of diseases. The U.S. Public Health Service existing avoiding amalgams having 1993 ‘no reason believe persuasive fact, In it them removed will have a beneficial effect on health.’ is inadvis- it can struc- able to have removed because cause amalgams unnecessarily tural teeth. damage healthy

“The ADA research in the materials new supports ongoing development that it to be as safe and effective as dental will hopes someday prove However, valuable, the ADA continues to is a amalgam. amalgam believe viable and safe choice for dental and concurs with the findings patients U.S. Public Health Service that has value in maintaining amalgam ‘continuing ” Assn., 11, (Am. oral health.’ Dental Dental Amalgam Statement on (May 2001) <http://www.ada.org/prof/prac/issues/statements/amalgam.html> [as 8, 2001].) of Aug.

The State of California has classified and as mercury compounds 1, 22, 12000, (Cal. toxins since Code tit. reproductive July Regs., 1990. § (c)(1).) ais toxic metal that is more than “Mercury highly dangerous lead, cadmium and arsenic in relation to its effect on the body.” (Leading Research Edge Mercury Amalgam: Contamination Human Neuro- Group, (1996) physiology <http://www.trufax.org/mercury/mercl.html> Aug. [as 8, 2001]; accord, Note, in Smoke: The Up Need International Regulation Waste Incineration Tex. Intemat. L.J. 264 Hazardous waste; toxic [highly substances include high-level radioactive arsenic, lead, less toxic substances include zinc].) copper, short, In a wealth of information exists on both sides of the dental much of it on the amalgam controversy, Internet. The Dental (Compare Amalgam Issue use of silver [opposing fillings] <http://www.amalgam.org> of Aug. with Possible Health Effects and Dental Amalgam [as 2001] use of silver fillings] [supporting <http://www.odont.lu.se/ projects/NBHW/ 8, 2001].) amalgam.html> Aug. [as

Proposition (the Act) Safe Water and Toxic Enforcement Act of Drinking initiative, was as an a vote of the on passed Proposition people November (§§ 1986. It is codified in the Health and Code Safety 25249.5- 25249.13). The Act intended to deter businesses from contaminating sources of and to drinking water businesses to warn individuals require about are carcinogens toxins reproductive they exposed transactions, (Cal. consumer through and the environment. employment, 22, 12601, Code tit. Regs., (b), (c).) subds. Because “Proposition § 462 a remedial statute intended to .... construe protect public

[is] [w]e statute rel. Lun broadly ex accomplish protective purpose.” (People 294, 855, v. Court gren Superior Cal.4th Cal.Rptr.2d [58 1042].) P.2d Section 1 of 65 states: Proposition “ ‘The of California find that hazardous chemicals a serious people pose threat to their health and that state well-being, government agencies potential failed to them have with that these failures provide adequate protection, been to lead have serious federal of the enough investigations by agencies administration California’s toxic The there- protection programs. people fore declare their rights:

“ drink ‘(a) To and the water chemicals against themselves protect they cancer, defects, that cause birth or other harm. reproductive “ cancer, ‘(b) To be informed about to chemicals that cause exposures defects, birth or other harm. reproductive

“ ‘(c) To secure strict enforcement of laws hazardous controlling chemicals and deter actions that threaten health and safety. public “ ‘(d) To shift the cost of hazardous waste more onto offenders cleanups ” 4, (Nov. (Ballot, and less onto Gen. Elec. law-abiding taxpayers.’ Pamp. 65, 1, 53, Notes, 1986) text of in Historical and Statutory Prop. p. reprinted § §25249.5, (1999 ed.) 40C West’s Ann. Health & Saf. Code foil. pp. 279-280.) toxins case concerns cause adverse devel- present reproductive 22, 12000, (See (c)(1), effects. Cal. Code tit. subd. Regs.,

opmental p. § Act, 2.) col. Under the at least once a Governor required publish, a list of chemicals known to the state to cause year, toxicity. reproductive Code, 25249.8, (Health (a); & subd. all further section references Safety § indicated.) are to the Health and Code unless otherwise Safety A . . . . . . chemical is “known to state cause reproductive toxicity if in the it has been shown clearly state’s opinion qualified experts according generally valid through scientifically testing accepted principles to cause . . . or if a considered to be authorita- toxicity, body reproductive such has identified it as . . . formally causing tive by experts reproductive or if an of the state or federal has toxicity, agency government formally . it to be labeled or identified as . . causing reproductive toxicity.” required chemicals (§ (b).) to the state to cause subd. The list of known (hereafter includes mercury compounds reproductive toxicity (Cal. (c)(1), 2.) col. Code tit. mercury). Regs., p. § One of the Act’s sections states that in the course person principal “[n]o shall individual to a knowingly expose any business doing intentionally first cause . . without toxicity chemical to the state to . reproductive known 25249.6, (§ . . . .” clear and reasonable to such individual warning giving added.) italics 25249.11, (§ entities.

The term includes individuals and various “person” business” does not (a).) in the course of doing subd. phrase “[p]erson than include certain entities or an with fewer public employer employees. 25249.11, 25249.5.) (§ (b); subd. see §

“ of, refers of the fact that ‘Knowingly’ only knowledge discharge of, is release or to a chemical listed ... exposure reproductive [as toxin] 12201, 22, (Cal. (d).) tit. In Code subd. occurring.” Regs., general, § “[n]o that the unlawful is release or is knowledge discharge, exposure required.” (Ibid.) inhale,

The term means “to cause to contact via ingest, body “expose” (Cal. surfaces or otherwise come into contact with a chemical.” Code Regs., 12201, (f).) tit. subd. “An individual come into contact with a may § air, food, water, chemical other envi- consumer through products any (Ibid.) ronmental as as well or exposure occupational workplace exposures.” The “level in means “the chemical concentration of a listed question” 22, 12821, chemical for the (Cal. Code tit. exposure Regs., question.” § (a).) subd. (§ 25249.6)

The Act’s warning subject statutory requirement exemp- tions, one of which for which the person respon- applies exposure “[a]n sible can show that the . . . will have no observable effect assum- exposure (1,000) at one thousand times the level in ing exposure question . . . .” substances known to state to cause toxicity reproductive 25249.10, (§ (c), (hereafter subd. italics added “In exposure exemption).) action to enforce the burden any brought warning requirement,] [the that an meets the criteria of this subdivision shall be on showing added.) (Ibid., italics defendant.” Thus, if a of dental care and intentionally provider knowingly exposes it has the burden warning, without employees patients that an times the level in will not cause question (The is not the only observable harm. exposure exemption reproductive are (see (a), (b)), under the Act subds. but the others exemption § not applicable.)

The Act is enforced in accordance with regulations promulgated Assessment, Health Hazard agency Office of Environmental primary 12301, 12302, 12305; (See the Act. Cal. Code tit. implements Regs., §§ id., 199.) A. foil. Under the a defendant regulations, can appen. p. § seek the data protection exposure exemption by providing specified about the effect of a toxin. In a defendant must reproductive particular, level,” “NOEL,” (1) establish: the “no observable effect which is the “maximum dose level at which a chemical has no observable reproductive tit, 22, (Cal. (c)); effect” Code Regs., level of § question. A. Maximum Dose Level technical,

The calculation of the NOEL involves a scientific in- highly determination “The of a whether level of to a chemical quiry. exposure known to the state to cause has toxicity no observable effect reproductive [at 1,000 times the level in shall be based on evidence standards question] of scientific to the evidence and standards which form comparable validity the scientific for the basis of chemical as known to the state to cause listing 22, 12801, (Cal. (a).) Code tit. subd. reproductive toxicity.” Regs., While § other {ibid.), evidence and standards are a defendant must still permitted risk assessment” of perform “quantitative regardless type 22, 12801, (Cal. (a), (b)(1), or standard used Code tit. subds. Regs., §§ 12803; id., 12801, (b)(2), 12805). see also subd. §§ determines

A risk assessment the maximum dose level quantitative having effect, no observable times the assuming reproductive exposure 22, 12801, (§ (c); level in subd. Cal. tit. Regs., Code question. §§ (b)(1), 12803.) subd. The assessment has to be based on studies producing the effect that the basis for the substance as a reproductive listing provided 22, 12803, (Cal. toxin in the first Code tit. subd. reproductive place. Regs., § (a)(1).) The be the NOEL must dose level that results in no observ- highest {Ibid.) able effect. The of reproductive quality suitability any epidemio- examined data must be in the data logical whether deciding appropriate. {Id., (a)(2).) subd. animal studies must Any satisfy generally comparative {Id., (a)(3).) scientific subd. The NOEL must be based accepted principles. {id., on the (a)(4)), most sensitive sufficient subd. and must study quality be converted into a dose milligram day level NOEL per by multiplying male, an assumed human for a body weight—70 kilograms kilograms {id., (b)). for a female subd.

B. Level Exposure

“The in includes the for in exposure question exposure person (Cal. the course of business is . . . .” Code tit. doing Regs., responsible (a).) The to a toxin “shall be subd. level exposure reproductive § (stated in terms of a con- determined level by multiplying question medium) of a chemical in a times the given reasonably centration anticipated medium. The given rate of for an individual to exposure reasonably rate of shall be based on the and duration of pattern anticipated exposure that is effect which the basis relevant exposure reproductive provided for the determination that a chemical is known to the state to cause repro- (Id., (b).) ductive subd. toxicity.” shall be

“For to consumer level exposures products, exposure calculated of intake or using rate reasonably anticipated users of the and not on a average consumer basis for product, per capita The rate of intake or shall be based on data for general population. (Cal. use of a general of consumer . . . .” category categories products tit. (c)(2).) Code Regs., § level is also based on certain about assumptions people breathe, air

general, including amount of the amount of they water they drink, 22, 12821, (Cal. and their life Code tit. subd. expectancy. Regs., §§ 12721, (c)(1), fetus, (d).) subd. For an to a a nine-month gestation (Ibid.) is used. period

C. Determination Exemption

A defendant is from about warning others toxin if exempt reproductive the level of times the NOEL. If question below defendant is not it must that is exempt, provide warning “reasonably calculated, the alternative methods available under the considering circum- stances, to make the available to the warning message individual prior 22, (Cal. Code tit. (a).) subd. The exposure.” Regs., warning “may § be methods such as labels on consumer provided general products, customers, notices, inclusion of notices in mailings water posting media, like, notices in news and the that the placing public provided warning (§ (f).) is clear and reasonable.” accomplished subd. History

Procedural 28, 2000, Cause, Inc., On Consumer filed this action on behalf February Inc., Services, Dental Smile- general public, naming Community Care as defendants. Consumer Cause filed a first amended Subsequently, (§ 25249.6) that defendants had violated the Act and the alleging complaint, Code, (Bus. unfair et California law & Prof. competition seq.). § More Consumer Cause that defendants had violated alleged specifically, the Act amalgam fillings containing exposing employees patients toxin—without

mercury—a requisite warning. reproductive providing (See (c)(1), 2.) tit. col. Cal. Code Regs., p. § amended did not contain whether complaint any allegations concerning defendants came a second cause of within As exposure exemption. action, Consumer Cause that defendants’ violations of the Act also alleged acts and under the violated on unlawful business prohibition practices Code, (See 17200.) unfair law. Bus. & Prof. competition § answer, an Defendants filed as affirmative defense that their alleging “actions were to California Health & Code permissible pursuant Safety i.e., 25249.10(c)[, after exposure exemption].” Shortly answering § defendants filed a motion for which relied on judgment, complaint, summary (1) two of evidence: Consumer Cause’s categories discovery responses, which admitted that Consumer Cause did not have evidence to dispute the declaration of a applicability exposure exemption; dentist, Amendola, Dr. Louis J. who stated that standard amalgam fillings contain trace amounts of have been used in the United States mercury, safely and are In for 150 the ADA. their years, approved by moving papers, that, defendants admitted use purposes summary judgment, they amalgam fillings containing mercury.

In Consumer Cause that the anwas opposition, argued warning exemption affirmative defense and that defendants had the burden of making prima that, facie that the defense Consumer Cause asserted applied. because defendants had not made such a the motion should be showing, denied. 16, 2001, order dated the trial court granted summary judg-

By January entered in ment. On the same the trial court defendants’ favor. day, judgment filed a Consumer Cause timely appeal.

Discussion to a defense motion We first address the burdens evidentiary applicable in a case the defendant invokes 65 where summary judgment Proposition 25249.10, (§§ (c), subd. exposure exemption warning requirement motion in 25249.6). We then those burdens to the summary judgment apply this case. in an of the we turn to Finally, opinion, unpublished portion available on Consumer Cause’s claim under the unfair competition remedy law. Summary Judgment

A. The Burden on (1996) our in & Associates Perry Defendants on decision Leslie G. v. rely 785], where we stated: “Under 43 Cal.App.4th Cal.Rptr.2d [50 statute, defendant need summary moving current version of judgment an essential his motion with affirmative evidence negating not support Instead, defendant may case. the moving element of the responding party’s otherwise) or to the factually vague discovery responses point (through done, case. When is absence evidence to support plaintiff’s of a triable there is showing burden shifts to the evidence present plaintiff unable to meet her burden proof issue of material fact. If the plaintiff case, her all other facts are rendered an essential element regarding (Id. added.) italics immaterial.” second p. the summary We also stated that a 1993 amendment to judgment have Proc., 437c, 276, 1, (Code as amended Stats. ch. statute Civ. pp. § § 1969-1974) from one dramatically, our state court “changed procedure defendant affirmative evidence where a was moving required present an element case ... to one where the conclusively negating plaintiff’s defendant can its burden satisfy evidentiary plaintiff’s proof in the form the inability to its own case prove (by plaintiff’s (Certain vague Lloyd’s Underwriters at factually discovery responses).” (1997) London v. Court Superior Cal.Rptr.2d Cal.App.4th [65 821], italics original.)

But defendants fail that their motion for did summary to grasp judgment claims, not seek to an element of Consumer Cause’s negate conclusively defense, i.e., Rather, otherwise. the motion was based on an affirmative effect at times had no observable reproductive (See (c).) the level in subd. question. § statute, move for action or By “[a]ny may summary judgment party if it that the no merit or that there is no is contended action has proceeding Proc., 437c, (a), (Code defense to the action or Civ. proceeding.” § added.) “A if either of the following italics cause of action has no merit exists: ^[51] (1) One or more of the elements of the cause of action cannot be established, if that A even element is separately separately pleaded. (Id., that cause of action.” establishes defendant affirmative defense (n)(l), (2), added.) “A . . . has met his or her subds. italics defendant burden of that a cause of action has no merit if that has shown party action, that one or more elements of the cause of even if not separately established, cannot be or that there is a complete pleaded, defense burden, the cause of action. Once the defendant . . . has met that burden that a triable issue of one or more material shifts to the to show plaintiff... (o)(2), (Id., of action or a thereto.” facts exists as to that cause defense added.) italics “The burden on a defendant for based moving summary judgment than the burden to the assertion of an affirmative defense is upon [different] be show one or more elements of the cause of action cannot plaintiff’s [that] a ele- established. Instead of evidence merely submitting negate single action, ment of the such as or cause evidence plaintiff’s offering vague insufficient that the does not have evidence to discovery responses plaintiff create an issue of fact as to one or more elements of his or her case . . . ‘the defendant has the initial burden to show that facts each support undisputed element of the affirmative defense’ . . . . If the defendant does not meet this burden, (Anderson the motion must be denied.” v. Metalclad Insulation Corp. 284, omitted; 331], italics Cal.Rptr.2d 289-290 Cal.App.4th [85 accord, Brown, Weil & Cal. Practice Guide: Civil Procedure Before Trial 10:241, 10:242, 10:249, 10-77, (The 2001) Rutter 10:246 to pp. Group ffil 10-78, (rev. 2001).) # 10-83 to 10-85 “ here) obligation is no on opposing party (plaintiffs ‘[T]here until has establish affidavit unless and anything by moving party “ de- every affidavit stated ‘facts element the affirmative establishing [of to sustain a in his favor. . . . . . What necessary judgment fense] fl[] elements, this means ... is that if an affirmative defense has four it does not suffice even if the defendant as to three overwhelming evidence produces of those elements. If the defendant fails to address the fourth element at all element, or to substantial the trial court evidence produce supporting Moreover, cannot properly grant summary judgment. summary judgment reversed, in those circumstances have to be granted plaintiff would even if to introduce a scintilla that element.” v. challenging (Huynh failed 296], (1993) 16 Ingersoll-Rand 830-831 Cal.App.4th Cal.Rptr.2d [20 omitted, added, third material added in Huynh.) citations italics bracketed As our Court commencement recently Supreme explained: “[F]rom conclusion, for bears the burden of moving party summary judgment that there is no triable issue of material fact and that he is entitled persuasion as a matter of law. That is because of the general judgment principle seeks a court’s action in his favor bears the burden of who party persuasion if, if, thereon. . . There is a triable issue of material fact only . a reasonable trier of fact to find the fact in evidence would allow underlying the motion in accordance with the applicable favor party opposing (2001) 25 Cal.4th standard . . .” v. Atlantic Co. proof. (Aguilar Richfield 80a, 24 P.3d (Aguilar), Cal.4th Cal.Rptr.2d [26 493] omitted, added.) citation and fn. italics bears an initial burden party moving summary judgment

“[T]he triable to make a of the nonexistence of production prima facie fact; of material if he carries his burden of he causes issue production, shift, then to a burden of and the party subjected production opposing

469 of a issue of of the existence triable showing facie his own to make prima sufficient to is one that is showing support material fact. ... A facie prima in . . . question. position party for, summary moving opposing, in way parties “[The which] and/or burden of persuasion production each their may carry judgment at of trial.” (Aguilar, on would bear what burden proof depends [party] 850-851, added.) 25 at first italics Cal.4th supra, pp.

B. The Burden as in this Case Applied motion should

We conclude that defendants’ summary judgment assumed, motion, for the sake been denied. In their defendants have and intentionally employees had argument, they knowingly exposed relied on the They expo without providing warning. patients that a was warning defense—and claimed sure affirmative exemption—an unnecessary. trial, course, defense has at a defendant affirmative raising

Of 785, (1999) 20 Cal.4th (Ramirez burden of it. v. YosemiteWater Co. proving 844, 2]; General Corp. P.2d Bertero v. National 794-795 978 Cal.Rptr.2d [85 P„2d 608, 184, 43, (1974) 13 54 65 A.L.R.3d Cal.3d Cal.Rptr. [118 25249.10, 878]; Act, (c).) see subd. a defendant on relying Under § NOEL, at trial have to establish the the level would exposure exemption and, that the was ultimately, level question, 25249.10, (§ (c); times NOEL. subd. Cal. Code tit. Regs., below the 12803.) (a), (b)(1), (c), subds. §§

Therefore, defendants summary stage, at the judgment present facie case had an burden of to make a initial production prima (See exemption. their conduct came within the exposure § Proc., 437c, Metalclad (c); (n)(2), (o)(2); Code Anderson v. Civ. subds. § 289-290; Brown, & Cal. Weil Insulation Corp., supra, pp. Cal.App.4th 10:242, 10:241, Trial, Before Practice Guide: Civil Procedure supra, 10-77, 10-78, 10:249, (rev. 2001).) # If they 10-83 to 10-85 10:246 pp. burden, at all.” need not make any showing failed to meet that “the plaintiff Ins. Co. (Pepperell Cal.App.4th [73 v. Scottsdale 164].) Cal.Rptr.2d declaration, Con- together with contend that Dr. Amendola’s

Defendants of production shifted the burden sumer Cause’s discovery responses, General the State as does the disagree, Attorney Consumer Cause. We General states: amicus curiae brief. The Attorney California in his Curiae, , “Amicus the of the State of California ex . . . rel. Bill People California, the General of the of Lockyer, Attorney State file this amicus the brief to Court to the urge reverse decision of the trial court granting . . . trial court misconstrued the summary judgment. burden proof [T]he of in a the action and that burden Proposition necessary meet Cause, proof, dismissed Consumer Inc.’s claims. improperly plaintiff [^] .. (cid:127) ra

“The file this because brief of their interest in this matter. The People is Attorney General as the ‘chief law officer of constitutionally designated the state’ and has the ensure constitutional that state law is ad- duty enforced. . . . Under the equately General sues ‘in Proposition Attorney the the name of State of . the California’ . . which People signifies the action anis exercise of the . . . The sovereign Attorney General power. is the to sue official on behalf of the the only permitted As People. principal enforcer of the General has a interest in Proposition Attorney significant decisions the burden in a 65 action.” interpreting proper proof Proposition (Italics added.)

1. Dr. Amendola’s Declaration declaration, In his (1) Dr. Amendola stated that standard dental amalgam a trace (2) contains amount only amalgam fillings have been mercury, (3) used throughout the for 150 the ADA has safely country years, approved evidence, the use of no amalgam there is scientific to his fillings, cause knowledge, suggesting amalgam adverse fillings any physical effect the with reactions in some exception allergic people.

We find Dr. Amendola’s declaration to in woefully be several inadequate NOEL, does not or the the It discuss even mention level of respects. addition, in or question, between two. In Dr. relationship Amendola’s are representation fillings ignores “safe” amalgam standards As the stated in Attorney Act. General has his imposed amicus curiae brief:

“[Wjhat at issue is in the is not exemption ‘safety’ of product causing but rather whether the is one thousand times exposure, Thtis, below the ‘no observable even whose use effect’ level. is products, state sanctioned and federal agencies, may still regulatory require . . . Proposition warning. [H] [^] Dr. declaration indicates that

“Nothing [of Amendola] [he] or has risk either assessment toxicologist expertise are statements that all of Dr. Amendola’s . assuming assessment. . . Even mercury to true, of exposure about... the level Dr. Amendola said nothing is one the about whether amalgam, nothing caused dental such Furthermore, not made could have times the NOEL. he thousand below of of his lack statements because apparent expertise.” that, address Amendola’s declaration does not conclude because Dr. We to it is entitled not under the exposure exemption, of relevant factors any any weight.

2. Consumer Cause’s Discovery Responses relied Consumer defendants also upon In for moving summary judgment, interrogatories. to for admissions and special Cause’s responses requests then, Cause’s discovery responses—without is whether Consumer question, Amendola’s the burden deficient declaration—shifted from Dr. any support Consumer Cause. We think not. of to production to “Admit One of for admissions stated: requests exposed contend have you the level at one times mercury thousand defendants to (Italics individuals no the individuals.” will have observable effect on that, it added.) Cause a reasonable inquiry, Consumer responded despite . . .” In “lacks sufficient information or to admit matter. knowledge admissions, to Cause admitted other Consumer responding requests caused it did not have evidence that defendants’ use of had mercury to mercury to nor did it level of injury anyone, concerning have defendants had individuals. allegedly which exposed asked, “Do you As for the No. interrogatories, special interrogatory believe level you contend to at one thousand times mercury have individuals to will result in observable effects to exposed Defendants answered, (Italics The next added.) Cause “No.” individual?” Consumer asked, is interrogatory] answer interrogatory your [preceding “If Identify all of other facts in unqualified negative, support than anything “Not thereto.” Consumer Cause your response responded, applicable.” all facts identify “regard- Another asked Consumer Cause to interrogatory claim have mercury exposed the level to which you ing Individu- Defendants no made (Italics stated: has added.) party Consumer Cause “Responding als.” the level defendants have allegation regarding mercury exposed Therefore, of such facts.” not in responding possession individuals. party (Italics added.) all Cause to identify asked Consumer succeeding

The two interrogatories individuals, the level “regarding documents and respectively, which you claim have (Italics added.) individuals.” Con- exposed Defendants sumer Cause’s to both stated: response interrogatories “Responding party has made allegation no regarding level which defendants Therefore, have individuals. is not exposed party responding possession such (Italics added.) information.”

The last asked interrogatory Consumer Cause any injuries identify attributed to defendants’ conduct. Cause Consumer “Responding replied, has made no party allegation injuries to attribut- regarding any individuals Therefore, able to defendants’ conduct. is not party possession responding of such (Italics added.) information.”

On an from do not the summary judgment, we examine appeal opposing Where, here, party’s discovery in isolation. as the trial court has responses granted a defendant’s for motion the summary discov judgment, plaintiff’s are if ery are used to responses pertinent only they support undisputed “facts” in the defendant’s statement. As we have separate previously stated: material be the facts must set forth in statement. ‘This separate “[A]// is the Golden Rule of Summary if it is not forth in Adjudication: set the statement, it exist. Both court separate does not the and the opposing party are entitled to have all the facts which the bases upon its moving party ” motion set (United forth in the plainly separate statement.’ Community (1991) Church Garcin 368], v. 231 337 Cal.App.3d Cal.Rptr. [282 italics in statute original, by on another as stated in Certain superseded point, Court, at Underwriters Lloyd’s London v. Superior supra, 56 Cal.App.4th of 4; accord, at (1993) fn. Kim v. p. Sumitomo Bank 17 Cal.App.4th 979 834].) Cal.Rptr.2d [21 statement,

In their defendants on Cause’s relied Consumer dis- separate (1) of two covery facts: “Plaintiff responses support allegedly undisputed has no evidence defendants’ of to alleged individuals exposure mercury . . . will have observable effect at times assuming exposure defendants”; level used of indi- alleged “Defendants’ exposure viduals to . . . will have no effect at assuming observable exposure 1000 times the level used defendants.” statement,

In its it Consumer Cause admitted that had no responsive evidence that defendants’ indicating individuals would cause at an observable effect times the level in As to question. fact, the second Consumer Cause Since alleged defend- responded: “Disputed. ants have not shown a defense Health & Code under section complete Safety i.e., (c)[, subdivision has no exposure exemption], plaintiff burden. . . .” evidentiary to defendants’ sepa that Consumer Cause’s responses

We conclude facts alleged Both did not warrant summary judgment. rate statement defense, as to which of defendants’ affirmative the applicability concerned did burden of satisfy—the production. had—but not they Lack Evidence a. Consumer Cause’s facie had burden make a prima

Defendants an initial however, on could not be based That showing, exemption applied. evidence applicability Cause’s lack to disprove Consumer (See supra, Metalclad Insulation Corp., Cal.App.4th defense. Anderson v. 289-290; at Ingersoll-Rand, supra, pp. v. Huynh Cal.App.4th pp. Trial, 830-831; Brown, Weil & Cal. Practice Civil Procedure Before Guide: 10:237, (rev. 2001).) Defendants’ 10:235 10-75 10-76 # supra, pp. contention the cart before the horse. contrary puts Consumer Cause did not have offer appli- disputing made initial until defendants cability requisite exemption otherwise, it moving Were defendant’s initial burden showing. at all— be no burden on an affirmative defense would summary judgment (See have burden of at trial. though proof even defendants would the 794-795; Co., at Bertero v. v. Yosemite 20 Cal.4th supra, pp. Water Ramirez 54.) 13 Cal.3d at is not initial Corp., National supra, p. plaintiff’s “[I]t (Weil by burden to affirmative defenses . . . asserted defendant.” disprove Brown, Trial, & Cal. Before supra, Practice Guide: Civil Procedure ^ 10:235, 1, 2001).) (rev. 10-75 # p. stated, a

As Dr. did not come close to making Amendola’s declaration facie that defendants’ conduct came within the showing exposure prima result, As a did not Consumer the burden shift to exemption. production Cause, its and lack of evidence was of no consequence.

b. Consumer Cause’s Contentions or

“A should be based on tacit admissions not summary judgment concessions, are contradicted other fragmentary equivocal 213 (Price (1989) evidence.” Bank Cal.App.3d credible v. Wells Fargo accord, 481-482; 735]; at v. United see id. Prilliman Cal.Rptr. pp. 482 [261 Lines, 142].) (1997) Air Inc. 961-962 Cal.App.4th Cal.Rptr.2d [62 “ad its summary judgment, To interests party opposing protect [, of the entire if be . . . any,] careful[ly] light missions should examin[ed] (1991) 228 (Mason & Center Marriage Family Cal.App.3d record.” v. added; accord, Con 51], v. Dinwiddie Scheiding italics Cal.Rptr. [279 360].) Cal.Rptr.2d struction Co. 69 Cal.App.4th [81 all of assumed Virtually discovery by defendants propounded that Consumer Cause had formed an opinion position regarding adopted level of to which individuals had been ex specific exposure actually and, such, That was an erroneous posed. as it has no assumption, legal significance. Consumer Cause’s the entire discovery light viewed responses,

record, did not contend or admit that defendants had individuals to exposed Instead, level of consistent specific mercury. with its burden of under proof Act, Consumer Cause alleged that defendants had simply knowingly intentionally without a exposed employees patients mercury warning. That for allegation—unchallenged summary purposes judgment—put burden on to make a facie that the level of prima showing defendants was within the limits set exposure Act: “In action brought enforce the burden warning requirement,] an exposure [the (§ (c), shall be on the added.) italics exempt] [is defendant.”

Consumer Cause did not have to fund scientific studies or collect medical data to establish the or to gauge NOEL level of defendants’ Act, Nor did offices. it have hazard a guess. Under not defendants, Cause, Consumer had to contend that the was at a level— specific 1,000 times below the NOEL. not level of By alleging exposure, specific Consumer Cause did not concede the level to be times below the statement, stated NOEL. As in Consumer Cause’s defend- separate “[s]ince ants not have shown a under . defense . . complete exemp- [the tion], has no burden. . . .” cannot evidentiary We fault a plaintiff party with its burden of under providing discovery responses comport proof the Act.

Thus, defendants not relying did their burden of on satisfy production Indeed, Consumer of Cause’s lack contentions. at oral counsel for argument, that defendants with conclusion. He stated that agreed judgment summary was because it was based both on Consumer Cause’s proper discovery and Dr. Amendola’s declaration. responses the court referred to Cause’s

During argument, Consumer interrogatory answers asked defendants’ counsel: “You are of the that by view their to submitting answers have met burden your interrogatories, you your “Well, of Counsel not that but declaration of Dr. proof?” just replied, stated, . . . .” At defense so the Amendola another counsel “And point, combination of the declaration and the . . . responses justifies interrogatory the summary judgment.” during negative

Also court focused on Consumer Cause’s argument, 3, answer to “Do interrogatory you No. asked: contend special

475 you at thousand times the level believe to one Defendants effects to the indi- will result in observable have individuals to exposed counsel, added.) defendants’ “If court (Italics vidual?” inquired view, reason, declaration, is is in our it your for whatever inadequate sufficient to have their to the itself answer interrogatory position “I would be Defense counsel answered: initially?” met burden of your proof, with, no, not be in to and if all came then we would forced that’s we say, up summary position judgment.” Dr. declaration is entitled As Amendola’s already we have explained, And, state, not on as could weight. correctly they rely no defendants their burden of Cause’s alone discovery responses satisfy Consumer case, result, theory summary As a under defendants’ own production. 16 (1940) Cal.2d (See Browne v. Court Superior was judgment improper. 1, concessions admis- 599 P.2d 131 A.L.R. [107 276] [counsel’s at v. binding]; Appel sions oral are Franklin argument Cal.App.4th Witkin, [same]; (4th fn. 11 Cal. Procedure Cal.Rptr.2d 759] [10 1997) [same].) ed. 665(c), Appeal, p. § that, Consumer

We note in No. special interrogatory responding “no”—as it did— Cause was faced with a Hobson’s choice. By answering defeat. But had Consumer conceding Consumer Cause stands accused stated, Cause then “yes” succeeding interrogatories, answered answer, facts, documents, it be it had no or witnesses to its would support Either defendants come accused of unfounded contention. making way, out the winner. demonstrated,

However, has its interrogatory as Consumer Cause amply answer, based that it its on discovery responses, premise like was other had made no level of to which allegation regarding specific No. 3 interrogatory individuals had been The answer special exposed. Consumer Cause’s burden conceded because it was consistent with nothing Thus, this explanation under the Act. case proof Cause’s] “[i]n [Consumer record, is the whole light viewed interrogatory, response [its] Center, (Mason & Marriage Family supra, Cal.App.3d v. [satisfactory].” 546.) p. “The his amicus curiae brief: The General Attorney agrees, stating that, in discov- their on the fact Dental Defendants further based argument the of that it information about level Consumer Cause stated lacked ery, that had no contention exposure to from dental exposure mercury amalgam, times result in one level in would question to thousand the mercury effects, caused by and no evidence that defendants injury observable had HQ individuals to . . court exposing mercury. . trial granted summary [T]he . . . and judgment [Tjhis dismissed the action. . . . is in error and ruling should be reversed. ™... ra elements of the be to [exposure] Dental exemption proved by

“[T]he Defendants are and detailed . . . does not involve specific. exemption [T]he ‘safe,’ individuals, that the chemical is has not caused harm to or Rather, is recommended various agencies. the Dental Defendants were (1) to required (2) evidence to for to present prove mercury, NOEL evidence to to present from dental prove exposure mercury amalgam, and to that the to from dental prove exposure mercury was one amalgam thousand times below the NOEL. record,

“As is evident from the the Dental Defendants failed to submit evidence to a meet even single element did not exemption. They a risk and perform quantitative assessment did not evidence provide any whatsoever established the NOEL evidence relied mercury. only on, Amendola], declaration of about one-page says nothing [Dr. NOEL for .... ... [U] M]

“Consumer Cause met its burden the elements its alleging prima case—that the Dental Defendants knowingly intentionally exposed facie toxin, individuals to a listed without a mercury, reproductive providing The Dental Defendants did not this warning. prima case. challenge facie Instead, asserted an they affirmative defense and that the argued exposure met the . . because it [statutory] exemption . was one thousand times below the NOEL. Dental Defendants failed to introduce a shred even of evidence to

“[T]he Thus, element of this prove any affirmative defense. to contrary argu- Defendants, ments the Dental Consumer Cause had no further presented burden and was not any evidence refute the defense. required provide

“Furthermore, it is irrelevant that Consumer Cause admitted in discovery [(1)] that it had no contention about the level from [(2)] dental had amalgam, no contention that at one thousand times the level in would it result observable effects. While question correct obtain moving may if it party summary judgment proves has no its concerning ‘essential element’ of case plaintiff , . . . neither of these issues were Cause’s elements Consumer [two] case. prima Consumer Cause was only prove knowing required facie intentional ... It did It was not exposure without so. warning. required have contentions or to evidence about the NOEL or the present level, until the Dental Defendants their met own burden of presenting is one dental amalgam . . to from . that the Defend- . . Since Dental mercury. times below the NOEL for . thousand had Consumer Cause to the elements of ants failed establish exemption, fn. citations and (Italics in original, its case.” no further burden presenting omitted.) sum, that the to an adequate

In defendants failed make did not shift follows the burden of It that applied. production exemption issue the exemption. Consumer Cause to raise with disputed respect Thus, for summary judgment this is not a case where party moving “[the] issue of fact at trial without submission of material any . . . would prevail at .” Cal.4th (Aguilar, supra, p. of fact for determination . . . a trier offer, did, could, that Consumer Cause 855.) of the evidence Regardless was fatal by summary judgment. the lack evidence submitted defendants Law* Competition C. Unfair

Disposition is reversed and the order judgment striking plaintiff’s prayer is entitled to on restitution affirmed. Plaintiff is costs appeal. J.,P. concurred.

Spencer, According to (MIRIAM J., A.), Dissenting.1 majority opin- VOGEL ion, can be filed any person lawsuits under Proposition prosecuted by on of a violation any allegations business based bare against unsupported that a actual even a faith belief good evidence of an violation—or chemical the state an unsafe amount of a known by defendant using about the cancer Unconcerned toxicity.2 practical cause or reproductive decision, that it has of their and undeterred admission by plaintiff’s effect footnote, ante, page 454. * See dissent, grounds I do not summary judgment on the stated in this 1 SinceI would affirm the majority majority portion of the unpublished discussed in the reach the additional issue opinion. strictly are a matter amounts of listed chemicals 2 Myreferences to “safe” and “unsafe” below, speaks in terms of amounts As in more detail statute explained convenience. assuming question times the have effect level do or don’t an observable case, definition). (a brief filed in this further In his amicus curiae phrase itself needs referring to the concept Attorney says the term “no observable effect” is a “scientific General given and not found experiment in a scientific exposure to a chemical tested level of was no evidence all to that the defendant is suggest using unsafe level of chemical, listed any and my colleagues have endorsed a form of encouraged judicial extortion. (it

Here is how it to works be what done certainly was in this appears doctor, case). Pick a dentist or (but dentist or doctor one with preferably a Visit the dentist’s or doctor’s office. don’t deep pocket). If see you counters, on the Proposition warning walls or to the nearest signs go courthouse, warn, $2,500 a file complaint, allege failure to and ask for for each the dentist or doctor has failed the day to give warnings. Don’t required be concerned when the or dentist doctor answers and as an affirma alleges tive that he defense is from the warning because he exempt requirements chemical, uses trace amounts only and not so that certainly enough to the anyone’s chemical is times the level that will result in an observable effect. Don’t when the dentist or worry doctor sends some you interrogatories for ahead requests admissions—go and admit that you have no about (and the level of the chemical he uses thus no reason law), believe that he is in admit violation of the you that do not contend that at the used level the dentist or will by doctor result in any observable effect. or doctor be able dentist won’t out of the a motion get case Instead,

summary based on judgment your admissions. he’ll have to com- safe, mission an “assessment” that his level of use is and he prove will have to for the kind of “assessment” pay done State California when it determines that a added chemical should be to the Proposition 65 know, list. many How thousands of dollars will that cost? I don’t but I do that, cost, know whatever the end will not product guaranty judgment for the defense. What’s a dentist or doctor to do? Settle with the plaintiff, course. Save cost of the Get assessment. Save fees. rid of the legal case.

I’m not this And making My colleagues did. can’t blame the up. they electorate or the statute Legislature. Although presumes warnings used, are whenever a listed chemical is the burden required is although on the he defendant is entitled to on the prove rely exemption from safe amounts of a listed chemical warning requirement only when are used, the scheme statutory has another col- ignored by my requirement leagues—that, summary survive must have at least judgment, plaintiff statistically significant to create a effect in a equated toxic number of It be instances. cannot with the express level at no harm occur to humans in normal use.” no would I view unsafe, actually about safe but phrases what sometimes use those as references shorthand exposures require warnings. to the that do and don’t just happens brought against 3 It so this was mind Keep case dentists. that other good targets. service are providers equally amount of a listed an unsafe using belief that the defendant is faith good chemical. show, the by majority the result reached the discussion will following

As is just plain wrong.

A. Complaint:4 essence, its the Reduced to Amended Consumer Cause’s First SmileCare, and filling that teeth amended while alleges first complaint its knowingly intentionally patients old has and removing fillings, exposed com- and mercury mercury to “amalgams containing] and employees toxicity to the state to cause (developmental) known reproductive pounds” SmileCare’s warning” clear and reasonable to giving patients without “first 22, Code, 25249.6; tit. (Health Regs., Cal. Code and & Saf. employees. § that (b), (c).)5 in this is allegation assumption subds. Implicit § SmileCare to its warning” law to “reasonable obligated give patients is and employees.6 Complaint: SmileCare gener-

SmileCare’s Answer to the First Amended and as affirmative allegations denied Consumer Cause’s ally alleged section defense that its “actions were under permissible” (c). subdivision (its alleged operative 4 Consumer that SmileCare pleading complaint) Cause’s first amended patients “methylmercury compounds” to cancer as exposed employees its and to known cause does reproductive toxicity. appeal, as this Cause that SmileCare well On Consumer concedes “methyl “mercury that the and mercury” “methylmercury compounds,” not use either and to to that are are not known the State compounds” used SmileCare “chemicals 22, 12000, (Cal. (a).) cancer.” Regs., cause Code tit. subd. § Code, 5 Undesignated undesignated and Safety section are to the Health and references regulation Regulations. to references are title 22 of California Code doing “No in the course of warning requirement person 6 The found in section 25249.6: is knowingly intentionally expose any a chemical to the business shall individual to known reproductive toxicity giving to cause cancer or first clear and reasonable state without individual, Regulation warning provided except such as in Section 25249.10.” (a), cancer or explains that the list of chemicals known the State cause subdivision date on toxicity updated year, once and the list shows initial reproductive per is at least light Cause’s concession appeared each chemical on the list. In of Consumer which chemical, cancer-causing listing found in the relevant is subdivision SmileCare does not use “[cjhemicals cause (c) regulation a list state to which divides known (1) toxicity,” “[d]eve!opmental toxicity” categories, that cause reproductive into three those “[fjemale (3) toxicity,” and those cause reproductive “[m]ale those that cause 1, 1990, (c).) July “mercury (Reg. toxicity.” Since reproductive § list, mercury toxicity no form developmental but compounds” have been included in out, (Ibid.) toxicity points lists. As SmileCare reproductive female or male included intentionally exposing individuals knowingly from “precludes section 25249.6 businesses warning toxicity reproductive cause unless chemicals to the state to cancer or known want, (in may you chemicals all given you expose people first case to the notice is actually being injured).” subject to someone

B. 1. The Statutory Exemption (c) Subdivision of section are not re- 25249.10 provides warnings “the quired when can show that the no person responsible poses exposure risk significant lifetime at the assuming level in for question cancer, substances known to the state to cause and that the will [1,000] have no observable effect assuming times level in question substances known to the state to cause reproductive toxicity ... .In action brought to burden warning requirement], [the enforce that an the exposure meets criteria this subdivision shall be on of the of (Italics that, added.) The as substances agree to parties defendant.” known the state to cause by reproductive toxicity, are warnings required when the to to is an amount sufficient exposure have observable effect at times the assuming exposure level in question.7 2. The the Regulations Governing Exemption case, In the context of this the “level in means the chemical question” of the concentration for in The in question.” “exposure “exposure includes the question” which SmileCare is and exposure responsible, does not include to other or any from source exposure mercury product. 12821, (a).) subd. of (Reg. The “level is determined exposure” mercury § (stated the in level in terms of a concentration of a “multiplying question medium) chemical a in times the rate given reasonably anticipated for an a exposure given individual to medium. reasonably anticipated rate of shall be on the based duration of that exposure pattern exposure to the relevant effect for the reproductive provided basis that a determination chemical is known to the state to cause reproductive 12821, .” (b).) . . subd. toxicity. (Reg. § available,

Unless more data are specific scientifically appropriate are used “to specified “assumptions” calculate reasonably anticipated 12821, rate (c).) (Reg. subd. exposure” mercury. By way example, § context, inhale, “expose” ingest, body 7 Inthis “to cause means contact via surfaces or may otherwise come into contact chemical. contact with a An individual come into with a water, air, food, through products any chemical consumer other exposure environmental 12201, occupational (f).) as workplace exposures.” (Reg. well as or subd. A “consumer § products exposure acquisition, storage, is an “results exposure” person’s purchase, that from a reasonably good, exposure or other consumption, any foreseeable use of a consumer or 12601, (b).) receiving (Reg. “occupational results from consumer service.” subd. An § exposure” exposure employee workplace causing any employer is an “in the of the 12601, (c).) exposure.” (Reg. warning may required, given subd. If be in the manner § 12601.) (Reg. described regulations—primarily signs. in the labels and § for an to affect “the or exposure reasonably (embryo expected conceptos fetus), for the is nine months.” gestation period exposed conceptos (c)(1), (d)(2)(B).) subd. subd. (Regs. of another By way §§ a maternal to a listed toxicant has example, exposure reproductive “[w]here fetus), an effect on the or the level of shall be conceptos (embryo exposure based on rate of for the mother reasonably anticipated during (c)(3).) nine-month gestation (Reg. subd. period.” §

“The determination of whether level of has no [mercury] observable are not re- purposes determining warnings [for effect shall be based on evidence and quired] standards of scientific comparable to the evidence and validity standards which form the scientific basis for the aof chemical to the listing known state to cause reproductive toxicity. Nothing regulations covering “observable levels shall [the preclude ”] effect evidence, standards, a person using assessment methodologies, prin- from ciples, levels not described in assumptions to establish regulations] [these that a 1,000[] level has no observable at. . . times level effect (a), question.” (Reg. added.) italics Since § is not included in regulations levels which chemicals identify effect, have no observable it that a risk assessment” is appears “quantitative the method to determine the anticipated level of that has no exposure observable 12801-12821.) effect. (Regs. The risk assess- “quantitative §§ ment” must be “based on evidence and standards of scientific comparable to the validity evidence and standards which form the scientific basis for the listing chemical as to the known state to cause reproductive toxicity.” (Reg. (a).) Four § pages how and squint-print explain whom a chemical on the list in the gets 12301-12306.) first (Regs. place. §§

This is the the way “observable effect level” is in A explained Appendix toxicants, to the Regulations: For “a reproductive is not if warning required the business can demonstrate that the will no observable exposure produce effect, words, even at times the level in In other the question. level of must be (NOEL),’ below ‘no observable effect level divided by 1,000-fold or safety factor. The ‘no uncertainty observable effect level’ is dose level has highest which not been associated with an observable adverse reproductive A.) effect.” developmental (Regs, appen.

3. The Attorney General’s Explanation Regulations This is the General it in his way Attorney amicus curiae brief: puts “The . . . substance regulations give to the . . . exemption provide guidance for whether a determining level of to a listed chemical has ‘no observable effect’ for This is a purposes exemption. highly technical, anecdotal and is not the same as presenting inquiry, scientific ’ Thus, for in order under some other standard. that a is product ‘safe calculate the ‘no observ- it must first the defendant to meet exemption, as the ‘maxi- (‘NOEL’). define NOEL regulations able effect’ level chemical effect’ has no observable reproductive mum dose level at which , that is deemed for the NOEL calculating . . . and a methodology provide to meet the regulatory requirements: omitted.] sufficient [Fn. that meets risk assessment quantitative

“1. The defendant must perform dose to determine the maximum regulations] the standards described [the [1,000] times the assuming no observable effect level having level question. be based on studies producing risk assessment must

“2. The quantitative basis for the Where listing. effect which provides reproductive exist, the studies be calculated from the NOEL must studies multiple results dose level which The NOEL is the highest the lowest NOEL. produce effect, of chemical kilogram in milligrams per in no observable ‘expressed of bodyweight per day.’ [Citation.] data, be it must is based on

“3. If the assessment epidemiological it to determine whether of data suitability evaluated quality basis for assessment. [Citation.] appropriate studies, the studies bioassay is based on animal

“4. If the assessment relating experimen- scientific principles must meet the generally accepted duration, etc. temporal exposure pattern, tal manner exposure, protocol, [Citation.] of sufficient study on the most sensitive must be based

“5. The NOEL quality. [Citation.] (or day to a milligram microgram) per must be converted

“6. The NOEL the NOEL. human body weight the assumed dose level by multiplying [Citation.] the regu- consistent with the NOEL the defendant has established

“Once of the risk lations, the second portion must then complete the defendant evidence, the individu- scientific through and prove, competent assessment at issue. Again, from the product to the listed substance al’s daily exposure technical, Regulations determination. state] highly [The this is a scientific the level in by multiplying ‘shall be determined of exposure the level in a given terms of a chemical of a concentration (stated in question medium) times the rate of for an reasonably anticipated individual exposure to a given medium.’ Certain are to be used in assumptions [Citation.] calculating reasonably rate of These anticipated exposure. [Citation.] breathe, include about the amount of air that the amount assumptions people drink, of water the normal etc. The they gestation period, regula- [Citation.] must be used tory unless ‘more assumptions scientifically specific data are available.’ appropriate [Citation.]

“At the conclusion of this risk assessment the defend- quantitative process, ant will have calculated the NOEL and the and can exposure question, [1,000] determine whether the is times below the question NOEL and therefore does not require warning. exclusive,

“While the regulations state that are not specifically they evidence, standards, nothing from prohibits person using alternative as- sessment, methodologies, or levels to principles, assumptions prove [1,000] level of [citation], times below NOEL the statute makes clear that the is not one of anecdotal but question one of hard ‘safety,’ science, both the calculation of a and an requiring NOEL level. In calculations, these performing the evidence must on party advancing rely ‘evidence and standards of scientific evidence and comparable validity standards which form the scientific basis for the of such listing chemical. Thus, the ability to deviate method calcu- regulatory [Citation.] from for lating (Most NOEL and the exposure added.) is limited.” italics

C. Requests The for Admissions: SmileCare four propounded requests Cause, admissions to Consumer two which were answered with admis- result, sions. As a admitted (1) Consumer Cause has that Consumer Cause “has no evidence that caused individuals injury [SmileCare] individuals to exposing that Consumer Cause no mercury,” “has concerning level to which allegedly [SmileCare] individuals.”8 exposed Interrogatories: SmileCare propounded eight special interrogatories answered, relevant,

Consumer Cause. Some were others were not. As these are the and answers: questions 8 There requests were two other for admissions but Consumer Cause refused to admit or statement,

deny asserting either that it lacked sufficient information to do so. The first asked Consumer Cause to a mercury admit “that lifetime of to at the level [Consumer exposed significant that SmileCare pose Cause] individuals to does not a risk contend[s has] causing of cancer in the individuals.” The second asked Consumer Cause to admit “that [1,000] exposure mercury to at times the level SmileCare [Consumer Cause] contend[s has] exposed individuals to will have no observable effect on the individuals.”

484 [1,000] times the level you to mercury

“Do contend that exposure you observable to will result in individuals believe exposed [SmileCare has] Cause’s answer was “No.” Consumer to the effects individuals?” documents, facts[, and individuals with all When asked to “[i]dentify to which the level of regarding Cause] [Consumer information] individuals,” Cause re- Consumer exposed that SmileCare has] claimfs the level regarding that it had “made no allegation a statement with sponded Therefore, individuals. of to which exposed [Con- [SmileCare has] of such facts.”9 sumer is not possession Cause] damning claimed in its motion discovery responses are as as SmileCare 9 Thatthese suggestion sophisticated a “more Attorney General’s summary judgment is shown or lack differently. plaintiff’s sophistication a might responded I do not believe plaintiff’ have point, to the I do not disregard discovery responses. More party’s of a court to permits it unsophisticated Cause as an Attorney characterization of Consumer agree with the General’s of (See, e.g., <http://www.mckennaccuneo.com/articles/article_detail.cfin7126> [as plaintiff. ‘bounty-hunter’ warning “Proposition a 65 “client alert” Aug. law firm’s [a 2001] Cause, against the had issued notices of intent to sue as Consumer Inc.” plaintiff known devices, “a describing Consumer Cause as medical manufacturers and distributors of 77 regarding Notices of Intent to Sue bounty-hunter plaintiff, having filed over a hundred prolific brought Proposition Cause also has suit range products. [under of consumer Consumer wide doing distributors business in California against major petroleum refiners and most of 65] Confer,’ explains counsel include an ‘Invitation which .... of these notices] [ID[Some creating a objectives include gain’ by these Notices. Their Consumer Cause ‘seeks what litigation,’ penalty a ‘small ... or the matter ‘without ‘channel of communication’ to resolve contribution,’ attorneys”]; <http://www/ ‘compensate’ the payment and an additional [describing March incident in which Aug. calprop65.devices.html> [as 2001] alleging to warn about companies, failures 60-day sent notices to over 300 Consumer Cause devices, April 2000 case in medical implanted chemicals in 76 different listed involving penile implants for exposure” a “nickel case Consumer Cause “settled” Cause, $50,000, payment half as to Consumer the other half denominated a “donation” with fees]; attorneys’ <http://www.calprop65.com/filings01.html> see also Cause’s for Consumer 20, 2001, a dozen July with at least Aug. pending list of cases as of 10-page 2001] [a [as <http://www.mccutchen.com/are/env/env_prop65_ plaintiff;] Cause is the in which Consumer Cause, ; Inc. Enterprises Aug. Equilon and see v. Consumer 2001] unchartered.html> [as 9, 2001], granted Apr. Aug. review (2000) Cal.Rptr.2d Cal.App.4th 371] 654 [102 [as S094877; 11, 2001, Cal.App.4th 738 [106 Yeroushalmi v. Miramar Sheraton 332].) Cal.Rptr.2d obvious, Cause is as to determine whether Consumer I used the Internet As should be may quite be as obvious that Attorney But it not claimed General. unsophisticated as independent kind of product are the of the same majority opinion pages the first six fillings are in amalgam dental concerning the debate about investigation—none of the “facts” evidence, anything to of these “facts” have parties’ in the briefs. None none were discussed us, ability understand Cause’s before or with Consumer proof do the burden of issue with interrogatory as ability object to an interrogatory, lawyer’s its straightforward with way one or the other. “ambiguous” fairly it cannot be answered if 485 D. Summary Judgment Separate

SmileCare’s Motion for and Statement. SmileCare moved for summary judgment on the that it is ground exempt from the warning as admitted Consumer requirements, Cause in its to responses SmileCare’s for admissions and More requests interrogatories. SmileCare relied specifically, on Consumer Cause’s to the answer interroga asked, that tory [1,000] “Do contend that you to at exposure mercury times the level believe you individuals to will result in exposed [SmileCare has] above, observable effects to the individuals?” As noted Consumer Cause answered, “No.” The and interrogatory the answer are cited in SmileCare’s statement in separate admitted fact and support conclu logical sion—that Consumer Cause’s failure to contend that SmileCare’s use of results mercury in observable effects means that SmileCare is not required give any motion, Proposition warnings.10 In its to SmileCare’s opposition Consumer Cause its simply ignored In its discovery responses. responding statement, separate Consumer Cause admitted it that had no that suggest SmileCare’s use of results in mercury observable effects assum 1,000 ing SmileCare, at times the level it is used disputed the issue on the solely (in ground view) Consumer Cause’s SmileCare had not met its burden of proof. finds it majority significant SmileCare concedes its use of mercury concedes that it has not scientific presented that its use of proof does not mercury result in observable effects at assuming exposure times the level it is used. miss the My colleagues point. SmileCare’s position that, chemical, its assuming use of a listed it is from the exempt warning because requirements Consumer Cause does not contend otherwise. Since Consumer Cause admitted in response SmileCare’s interrogatory it does not contend [1,000] “that times the level [Con- sumer SmileCare exposed Cause] individuals to will result in believe[s has] discovery statement, 10 Becausethe responses specifically are separate cited in SmileCare’s I am at a loss to majority’s understand the my reliance on opinion Community in United 368], Church v. Garcin Cal.App.3d Cal.Rptr. a case where the facts [282 relied on were not included in the separate statement. 11When responded Consumer Cause interrogatories requests SmileCare’s for admis sions, Consumer Cause (by way answer) knew of SmileCare’s that SmileCare claimed that, exemption (c). under section subdivision Knowing Consumer Cause said it does not contend that SmileCare’s use of defeats SmileCare’s reliance on the reason, exemption. For this my I cannot colleagues’ understand refusal to hold Consumer Cause to its puts admission. As SmileCare plaintiff negligence, it: “If a sued a defendant for plaintiff would proof have the burden of negligence. to establish plaintiff But if served defendant interrogatory asking with an defendant if it negligent, contends defendant was not ‘No,’ replied, and defendant conceding defendant be plaintiff would that as soon as makes prima kind of negligence, facie liability is established opposition. without exactly That is happened what here. Plaintiff admitted it had no evidence to rebut the Section 25249.10[, defense, (c) and did subdivision] not even contend that the apply.” defense did not ” individuals, it to the SmileCare’s observable defense—that affirmative effects not disputed. exemption—is to on the “observable rely is entitled effects”

1. burden of rule statement of the proof with the majority’s I agree generally for summary a defendant moves this case. when in the context of Simply put, defense, has the initial affirmative the defendant based an judgment upon is, in of to make a facie showing support of prima burden production—that admissions, declarations, defense, can be done with which its affirmative and matters about other discovery responses, answers to interrogatories, done, to the the burden shifts can be taken. Once that is notice judicial to a triable issue of fact as sufficient to create to plaintiff present Atlantic the defendant. v. (Aguilar defense relied on by the affirmative 80a, Cal.4th (2001) 25 Cal.4th 849-855 Co. [26 Richfield 493].) 24 P.3d Cal.Rptr.2d it comes to the application when my colleagues I with company part view, met its burden. It presented In SmileCare my these rules to this case. D.D.S., Amendola, that to the fact attesting J. the declaration of Louis amounts of mercury,” dental with “trace amalgams uses standard SmileCare years, fillings in the United States the most used widely fillings the American Dental Association. and recommended as safe by are approved in which Consumer Cause’s discovery responses SmileCare also presented the level (1) concerning it had no evidence Consumer Cause admitted contend that it does not exposed anyone to which SmileCare 1,000 SmileCare will times the level used to at that view, these are admis- In my in observable effects to individuals. result (c) of section 25249.10— under subdivision that SmileCare is exempt sions no observable at issue will have that the exposure because it is undisputed 1,000 at times the level question. assuming effect Cause to shifted to Consumer I believe the burden With that showing, used level at least a reasonable some evidence showing present belief effect assuming exposure an observable SmileCare does have that, section contrary am not suggesting I times the level question. 25249.10, to show that levels the burden is on a (c), plaintiff subdivision (c) (§ warnings. are sufficiently high require of exposure “the burden to enforce the warning requirement, action brought [in defendant”].) But I am shall be on that an exempt] exposure [is that, random dentist every before putting most definitely suggesting doctor in California to the involved in extraordinary expense preparing lawsuit, “assessment” in this kind required we prevail ought require more than something naked assertion plaintiff’s absolute right in this kind of engage litigation.

2.

The statute and the this regulations support approach. (a) Regulation (which subdivision the determination whether says a level of to has exposure no observable effect shall be based on evidence and standards of scientific to the comparable validity evidence and standards which form the scientific basis for the of a chemical listing known to the state to cause also reproductive toxicity) in the provides nothing regulations observable covering levels precludes person using effect from evidence or other than assumptions those described in the to regulations establish that a 1,000 level of has no effect at exposure observable times the Here, level in question. purposes summary SmileCare has judgment, used Consumer Cause’s admissions that it does not contend that the level of exposure times in will result question in observable effects, and that it has no evidence the levels at issue as concerning corroborating dentist’s trace testimony only amounts are used. The assumption, for purposes summary to be judgment, ought that Consumer Cause has no reasonable belief that SmileCare has violated the letter or the spirit Proposition 65.

The “notice” lend requirements further to support my this interpretation statutory scheme. Section (d)(1), subdivision permits any person acting interest to public an action to bring enforce the warning that notice has requirements—provided first been given the Attorney General and other with prosecutors jurisdiction. Regulation section 12903 sets out the notice, content of the specific (in context) this required including the route of exposure by to occur alleged (e.g., by inhalation, ingestion, contact), dermal the name of the consumer product service, and the identity regulated chemical. But the notice need not contain “the level of to the chemical in or the question” “specific admissible evidence which the the notice person providing will attempt the violation” prove (Reg. (b)(4)(B)-(C), added.) § emphasis Quite that, the electorate plainly, and the rulemakers assume at some point must, minimum, these it is the proceedings, who at a plaintiff attempt fact, that, the violation. prove Given that I believe based on the showing made by SmileCare in of its motion for support Con- summary judgment, sumer Cause’s that it has inability say so much as faith belief that good of the summary judgment is not an affirmance SmileCare exempt requires the trial court. granted by its right is to Consumer Cause give pick

To conclude otherwise and, of liability, require defendants out of a hat without even suspicion is, to shoot holes in are not the law—that violating them to they prove bam, that result will do then circles around them.12 Since the side of a draw extorted from Consumer Cause’s with money more than line nothing pockets fees, I cannot then be forced to raise their dentists and others who will the voters’ intent when 65 was Proposition adopted. believe that was I affirm the summary judgment. would denied 2001. August

A for a was rehearing petition books, can be found in a number of anyone parable, doesn’t know the it 12 For who Number, Paulos’s, Logic of a The Hidden Mathematical including Upon John Allen Once bookish, telling (Basic 1998) nerdy man is his kids “A somewhat page Stories Books 17: admiring it was by an student how story about the famous rabbi who was asked Leo Rosten subject. replied parable The rabbi with always perfect parable that the rabbi had a noticed dozens riding through a small town and army in the Tsar’s who was about a recruiter barn, through bullseye. hole targets each with a bullet circular on the side of of chalked might be. The neighbor perfect who this shooter impressed and asked The recruiter was peculiar.’ The son. He’s a little neighbor Shepsel, that’s the shoemaker’s responded, ‘Oh see, added, Shepsel ‘You first shoots neighbor until the recruiter was undeterred enthusiastic way grinned. The rabbi ‘That’s circles around the bullet hole.’ and then he draws the chalk subjects subject. only for which parable for a to fit the I introduce it is with me. I don’t look ” parables.’ I have

Case Details

Case Name: Consumer Cause, Inc. v. Smilecare

Court Name: California Court of Appeal

Date Published: Aug 9, 2001

Citation: 110 Cal. Rptr. 2d 627

Docket Number: B147727

Court Abbreviation: Cal. Ct. App.