According to the majority opinion, lawsuits under Proposition 65 can be filed and prosecuted by any person against any business based on bare allegations of a violation unsupported by any evidence of an actual violation—or even a good faith belief that a defendant is using an unsafe amount of a chemical known by the state to cause cancer or reproductive toxicity.2 Unconcerned about the practical effect of their decision, and undeterred by a plaintiff’s admission that it has *478no evidence at all to suggest that the defendant is using an unsafe level of any listed chemical, my colleagues have endorsed and encouraged a form of judicial extortion.
Here is how it works (it certainly appears to be what was done in this case). Pick a dentist or doctor, any dentist or doctor (but preferably one with a deep pocket).3 Visit the dentist’s or doctor’s office. If you don’t see Proposition 65 warning signs on the walls or counters, go to the nearest courthouse, file a complaint, allege a failure to warn, and ask for $2,500 for each day the dentist or doctor has failed to give the required warnings. Don’t be concerned when the dentist or doctor answers and alleges as an affirmative defense that he is exempt from the warning requirements because he uses only trace amounts of the chemical, and certainly not enough so that anyone’s exposure to the chemical is 1,000 times the level that will result in an observable effect. Don’t worry when the dentist or doctor sends you some interrogatories and requests for admissions—go ahead and admit that you have no evidence about the level of the chemical he uses (and thus no reason to believe that he is in violation of the law), and admit that you do not contend that exposure at the level used by the dentist or doctor will result in any observable effect.
The dentist or doctor won’t be able to get out of the case by a motion for summary judgment based on your admissions. Instead, he’ll have to commission an “assessment” to prove that his level of use is safe, and he will have to pay for the kind of “assessment” done by the State of California when it determines that a chemical should be added to the Proposition 65 list. How many thousands of dollars will that cost? I don’t know, but I do know that, whatever the cost, the end product will not guaranty a judgment for the defense. What’s a dentist or doctor to do? Settle with the plaintiff, of course. Save the cost of the assessment. Save the legal fees. Get rid of the case.
I’m not making this up. My colleagues did. And they can’t blame the electorate or the Legislature. Although the statute presumes that warnings are required whenever a listed chemical is used, and although the burden is on the defendant to prove that he is entitled to rely on the exemption from the warning requirement when only safe amounts of a listed chemical are used, the statutory scheme has another requirement ignored by my colleagues—that, to survive summary judgment, the plaintiff must have at least *479a good faith belief that the defendant is using an unsafe amount of a listed chemical.
As the following discussion will show, the result reached by the majority is just plain wrong.
A.
Consumer Cause’s First Amended Complaint:4 Reduced to its essence, the first amended complaint alleges that SmileCare, while filling teeth and removing old fillings, has knowingly and intentionally exposed its patients and employees to “amalgams containing] mercury and mercury compounds” known to the state to cause reproductive (developmental) toxicity without “first giving clear and reasonable warning” to SmileCare’s patients and employees. (Health & Saf. Code, § 25249.6; Cal. Code Regs., tit. 22, § 12000, subds. (b), (c).)5 Implicit in this allegation is the assumption that SmileCare is obligated by law to give “reasonable warning” to its patients and employees.6
SmileCare’s Answer to the First Amended Complaint: SmileCare generally denied Consumer Cause’s allegations and alleged as an affirmative defense that its “actions were permissible” under section 25249.10, subdivision (c).
*480B.
1. The Statutory Exemption
Subdivision (c) of section 25249.10 provides that warnings are not required when “the person responsible can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer, and that the exposure will have no observable effect assuming exposure at [1,000] times the level in question for substances known to the state to cause reproductive toxicity ... .In any action brought to enforce [the warning requirement], the burden of showing that an exposure meets the criteria of this subdivision shall be on the defendant.” (Italics added.) The parties agree that, as to substances known by the state to cause reproductive toxicity, warnings are required when the exposure is to an amount sufficient to have an observable effect assuming exposure at 1,000 times the level in question.7
2. The Regulations Governing the Exemption
In the context of this case, the “level in question” means the chemical concentration of mercury for the “exposure in question.” The “exposure in question” includes the exposure for which SmileCare is responsible, and does not include exposure to mercury from any other source or product. (Reg. § 12821, subd. (a).) The “level of exposure” to mercury is determined by “multiplying the level in question (stated in terms of a concentration of a chemical in a given medium) times the reasonably anticipated rate of exposure for an individual to a given medium. The reasonably anticipated rate of exposure shall be based on the pattern and duration of exposure that is relevant to the reproductive effect which provided the basis for the determination that a chemical is known to the state to cause reproductive toxicity. . . .” (Reg. § 12821, subd. (b).)
Unless more specific and scientifically appropriate data are available, specified “assumptions” are used “to calculate the reasonably anticipated rate of exposure” to mercury. (Reg. § 12821, subd. (c).) By way of example, *481for an exposure reasonably expected to affect “the conceptos (embryo or fetus), the gestation period for the exposed conceptos is nine months.” (Regs. §§ 12821, subd. (c)(1), 12721, subd. (d)(2)(B).) By way of another example, “[w]here a maternal exposure to a listed reproductive toxicant has an effect on the conceptos (embryo or fetus), the level of exposure shall be based on the reasonably anticipated rate of exposure for the mother during the nine-month gestation period.” (Reg. § 12821, subd. (c)(3).)
“The determination of whether a level of exposure to [mercury] has no observable effect [for purposes of determining that warnings are not required] shall be based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of a chemical known to the state to cause reproductive toxicity. Nothing in [the regulations covering “observable effect levels ”] shall preclude a person from using evidence, standards, assessment methodologies, principles, assumptions or levels not described in [these regulations] to establish that a level of exposure has no observable effect at. . . 1,000[] times the level in question.” (Reg. § 12801, subd. (a), italics added.) Since mercury is not included in any of the regulations that identify the levels at which chemicals have no observable effect, it appears that a “quantitative risk assessment” is the anticipated method to determine the level of exposure that has no observable effect. (Regs. §§ 12801-12821.) The “quantitative risk assessment” must be “based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for listing the chemical as known to the state to cause reproductive toxicity.” (Reg. § 12803, subd. (a).) Four pages of squint-print explain how and by whom a chemical gets on the list in the first place. (Regs. §§ 12301-12306.)
This is the way the “observable effect level” is explained in Appendix A to the Regulations: For reproductive toxicants, “a warning is not required if the business can demonstrate that the exposure will produce no observable effect, even at 1,000 times the level in question. In other words, the level of exposure must be below the ‘no observable effect level (NOEL),’ divided by a 1,000-fold safety or uncertainty factor. The ‘no observable effect level’ is the highest dose level which has not been associated with an observable adverse reproductive or developmental effect.” (Regs, appen. A.)
3. The Attorney General’s Explanation of the Regulations
This is the way the Attorney General puts it in his amicus curiae brief: “The regulations . . . give substance to the . . . exemption and provide guidance for determining whether a level of exposure to a listed chemical has ‘no observable effect’ for purposes of the exemption. This is a highly *482technical, scientific inquiry, and is not the same as presenting anecdotal evidence that a product is ‘safe ’ under some other standard. Thus, in order for the defendant to meet the exemption, it must first calculate the ‘no observable effect’ level (‘NOEL’). The regulations define the NOEL as the ‘maximum dose level at which a chemical has no observable reproductive effect’ . . . , and provide a methodology for calculating the NOEL that is deemed sufficient to meet the regulatory requirements: [Fn. omitted.]
“1. The defendant must perform a quantitative risk assessment that meets the standards described in [the regulations] to determine the maximum dose level having no observable effect assuming exposure at [1,000] times the level in question.
“2. The quantitative risk assessment must be based on studies producing the reproductive effect which provides the basis for the listing. Where multiple studies exist, the NOEL must be calculated from the studies which produce the lowest NOEL. The NOEL is the highest dose level which results in no observable effect, ‘expressed in milligrams of chemical per kilogram of body weight per day.’ [Citation.]
“3. If the assessment is based on epidemiological data, it must be evaluated for quality and suitability of data to determine whether it is an appropriate basis for assessment. [Citation.]
“4. If the assessment is based on animal bioassay studies, the studies must meet the generally accepted scientific principles relating to experimental protocol, manner of exposure, temporal exposure pattern, duration, etc. [Citation.]
“5. The NOEL must be based on the most sensitive study of sufficient quality. [Citation.]
“6. The NOEL must be converted to a milligram (or microgram) per day dose level by multiplying the assumed human body weight by the NOEL. [Citation.]
“Once the defendant has established the NOEL consistent with the regulations, the defendant must then complete the second portion of the risk assessment and prove, through competent scientific evidence, the individual’s daily exposure to the listed substance from the product at issue. Again, this is a highly technical, scientific determination. [The Regulations state] that the level of exposure ‘shall be determined by multiplying the level in question (stated in terms of a concentration of a chemical in a given *483medium) times the reasonably anticipated rate of exposure for an individual to a given medium.’ [Citation.] Certain assumptions are to be used in calculating the reasonably anticipated rate of exposure. [Citation.] These include assumptions about the amount of air that people breathe, the amount of water they drink, the normal gestation period, etc. [Citation.] The regulatory assumptions must be used unless ‘more specific and scientifically appropriate data are available.’ [Citation.]
“At the conclusion of this quantitative risk assessment process, the defendant will have calculated the NOEL and the exposure in question, and can determine whether the exposure in question is [1,000] times below the NOEL and therefore does not require a warning.
“While the regulations specifically state that they are not exclusive, and nothing prohibits a person from using alternative evidence, standards, assessment, methodologies, principles, assumptions or levels to prove that a level of exposure is [1,000] times below the NOEL [citation], the statute makes clear that the question is not one of anecdotal ‘safety,’ but one of hard science, requiring both the calculation of a NOEL and an exposure level. In performing these calculations, the party advancing the evidence must rely on ‘evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of such chemical. [Citation.] Thus, the ability to deviate from the regulatory method for calculating the NOEL and the exposure is limited.” (Most italics added.)
C.
The Requests for Admissions: SmileCare propounded four requests for admissions to Consumer Cause, two of which were answered with admissions. As a result, Consumer Cause has admitted (1) that Consumer Cause “has no evidence that [SmileCare] caused injury to any individuals by exposing individuals to mercury,” and (2) that Consumer Cause “has no evidence concerning the level of mercury to which [SmileCare] allegedly exposed individuals.”8
The Interrogatories: SmileCare propounded eight special interrogatories to Consumer Cause. Some were answered, others were not. As relevant, these are the questions and answers:
*484“Do you contend that exposure to mercury at [1,000] times the level you believe [SmileCare has] exposed individuals to will result in observable effects to the individuals?” Consumer Cause’s answer was “No.”
When asked to “[i]dentify all facts[, documents, and individuals with information] regarding the level of mercury to which [Consumer Cause] claimfs that SmileCare has] exposed individuals,” Consumer Cause responded with a statement that it had “made no allegation regarding the level of mercury to which [SmileCare has] exposed individuals. Therefore, [Consumer Cause] is not in possession of such facts.”9
*485D.
SmileCare’s Motion for Summary Judgment and Separate Statement. SmileCare moved for summary judgment on the ground that it is exempt from the warning requirements, as admitted by Consumer Cause in its responses to SmileCare’s requests for admissions and interrogatories. More specifically, SmileCare relied on Consumer Cause’s answer to the interrogatory that asked, “Do you contend that exposure to mercury at [1,000] times the level you believe [SmileCare has] exposed individuals to will result in observable effects to the individuals?” As noted above, Consumer Cause answered, “No.” The interrogatory and the answer are cited in SmileCare’s separate statement in support of the admitted fact and the logical conclusion—that Consumer Cause’s failure to contend that SmileCare’s use of mercury results in observable effects means that SmileCare is not required to give any Proposition 65 warnings.10 In its opposition to SmileCare’s motion, Consumer Cause simply ignored its discovery responses. In its responding separate statement, Consumer Cause admitted that it had no evidence to suggest that SmileCare’s use of mercury results in observable effects assuming exposure at 1,000 times the level it is used by SmileCare, and disputed the issue solely on the ground that (in Consumer Cause’s view) SmileCare had not met its burden of proof.11
The majority finds it significant that SmileCare concedes its use of mercury and concedes that it has not presented scientific proof that its use of mercury does not result in observable effects assuming exposure at 1,000 times the level it is used. My colleagues miss the point. SmileCare’s position is that, assuming its use of a listed chemical, it is exempt from the warning requirements because Consumer Cause does not contend otherwise. Since Consumer Cause admitted in response to SmileCare’s interrogatory that it does not contend “that exposure to mercury at [1,000] times the level [Consumer Cause] believe[s SmileCare has] exposed individuals to will result in *486observable effects to the individuals, ” SmileCare’s affirmative defense—that it is entitled to rely on the “observable effects” exemption—is not disputed.
1.
I agree generally with the majority’s statement of the burden of proof rule in the context of this case. Simply put, when a defendant moves for summary judgment based upon an affirmative defense, the defendant has the initial burden of production—that is, to make a prima facie showing in support of its affirmative defense, which can be done with declarations, admissions, answers to interrogatories, other discovery responses, and matters about which judicial notice can be taken. Once that is done, the burden shifts to the plaintiff to present evidence sufficient to create a triable issue of fact as to the affirmative defense relied on by the defendant. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-855 [26 Cal.4th 80a, 107 Cal.Rptr.2d 841, 24 P.3d 493].)
I part company with my colleagues when it comes to the application of these rules to this case. In my view, SmileCare met its burden. It presented the declaration of Louis J. Amendola, D.D.S., attesting to the fact that SmileCare uses standard dental amalgams with “trace amounts of mercury,” the most widely used fillings in the United States for 150 years, fillings that are approved and recommended as safe by the American Dental Association. SmileCare also presented Consumer Cause’s discovery responses in which Consumer Cause admitted (1) that it had no evidence concerning the level of mercury to which SmileCare exposed anyone and (2) that it does not contend that exposure to mercury at 1,000 times the level used by SmileCare will result in observable effects to the individuals. In my view, these are admissions that SmileCare is exempt under subdivision (c) of section 25249.10— because it is undisputed that the exposure at issue will have no observable effect assuming exposure at 1,000 times the level in question.
With that showing, I believe the burden shifted to Consumer Cause to present some evidence showing at least a reasonable belief that the level used by SmileCare does have an observable effect assuming exposure at 1,000 times the level in question. I am not suggesting that, contrary to section 25249.10, subdivision (c), the burden is on a plaintiff to show that the levels of exposure are sufficiently high to require warnings. (§ 25249.10, subd. (c) [in any action brought to enforce the warning requirement, “the burden of showing that an exposure [is exempt] shall be on the defendant”].) But I am most definitely suggesting that, before putting every random dentist and *487doctor in California to the extraordinary expense involved in preparing the “assessment” required to prevail in this kind of lawsuit, we ought to require something more than the plaintiff’s naked assertion of an absolute right to engage in this kind of litigation.
2.
The statute and the regulations support this approach.
Regulation 12801, subdivision (a) (which says the determination whether a level of exposure to mercury has no observable effect shall be based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of a chemical known to the state to cause reproductive toxicity) also provides that nothing in the regulations covering observable effect levels precludes a person from using evidence or assumptions other than those described in the regulations to establish that a level of exposure has no observable effect at 1,000 times the level in question. Here, for purposes of summary judgment, SmileCare has used Consumer Cause’s admissions that it does not contend that the level of exposure at 1,000 times the exposure in question will result in observable effects, and that it has no evidence concerning the levels at issue as evidence corroborating the dentist’s testimony that only trace amounts are used. The assumption, for purposes of summary judgment, ought to be that Consumer Cause has no reasonable belief that SmileCare has violated the letter or the spirit of Proposition 65.
The “notice” requirements lend further support to my interpretation of this statutory scheme. Section 25249.7, subdivision (d)(1), permits any person acting in the public interest to bring an action to enforce the warning requirements—provided that notice has first been given to the Attorney General and other prosecutors with jurisdiction. Regulation section 12903 sets out the specific content of the required notice, including (in this context) the route of exposure by which exposure is alleged to occur (e.g., by inhalation, ingestion, dermal contact), the name of the consumer product or service, and the identity of the regulated chemical. But the notice need not contain “the level of exposure to the chemical in question” or the “specific admissible evidence by which the person providing the notice will attempt to prove the violation” (Reg. § 12903, subd. (b)(4)(B)-(C), emphasis added.) Quite plainly, the electorate and the rulemakers assume that, at some point in these proceedings, it is the plaintiff who must, at a minimum, attempt to prove the violation. Given that fact, I believe that, based on the showing made by SmileCare in support of its motion for summary judgment, Consumer Cause’s inability to say that it has so much as a good faith belief that *488SmileCare is not exempt requires an affirmance of the summary judgment granted by the trial court.
To conclude otherwise is to give Consumer Cause the right to pick its defendants out of a hat and, without even a suspicion of liability, require them to prove that they are not violating the law—that is, to shoot holes in the side of a bam, then draw circles around them.12 Since that result will do nothing more than line Consumer Cause’s pockets with money extorted from dentists and others who will then be forced to raise their fees, I cannot believe that was the voters’ intent when Proposition 65 was adopted.
I would affirm the summary judgment.
A petition for a rehearing was denied August 21, 2001.
Since I would affirm the summary judgment on the grounds stated in this dissent, I do not reach the additional issue discussed by the majority in the unpublished portion of the majority opinion.
My references to “safe” and “unsafe” amounts of listed chemicals are strictly a matter of convenience. As explained in more detail below, the statute speaks in terms of amounts that do or don’t have an observable effect assuming exposure at 1,000 times the level in question (a phrase that itself needs further definition). In his amicus curiae brief filed in this case, the Attorney General says the term “no observable effect” is a “scientific concept referring to the level of exposure to a chemical that was tested in a given scientific experiment and not found *478to create a toxic effect in a statistically significant number of instances. It cannot be equated with the level at which no harm would occur to humans in normal use.” I express no view about what is actually safe or unsafe, but sometimes use those phrases as shorthand references to the exposures that do and don’t require warnings.
It just so happens that this case was brought against dentists. Keep in mind that other service providers are equally good targets.
Consumer Cause’s operative pleading (its first amended complaint) alleged that SmileCare exposed its patients and employees to “methylmercury compounds” known to cause cancer as well as reproductive toxicity. On this appeal, Consumer Cause concedes that SmileCare does not use either “methyl mercury” or “methylmercury compounds,” and that the “mercury and mercury compounds” that are used by SmileCare are not “chemicals known to the State to cause cancer.” (Cal. Code Regs., tit. 22, § 12000, subd. (a).)
Undesignated section references are to the Health and Safety Code, and undesignated regulation references are to title 22 of the California Code of Regulations.
The warning requirement is found in section 25249.6: “No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.” Regulation 12000, subdivision (a), explains that the list of chemicals known to the State to cause cancer or reproductive toxicity is updated at least once per year, and the list shows the initial date on which each chemical appeared on the list. In light of Consumer Cause’s concession that SmileCare does not use a cancer-causing chemical, the relevant listing is found in subdivision (c) of regulation 12000, which divides a list of “[cjhemicals known to the state to cause reproductive toxicity” into three categories, those that cause (1) “[d]eve!opmental toxicity,” (2) those that cause “[fjemale reproductive toxicity,” and (3) those that cause “[m]ale reproductive toxicity.” (Reg. § 12000, subd. (c).) Since July 1, 1990, “mercury and mercury compounds” have been included in the developmental toxicity list, but no form of mercury is included in the female or male reproductive toxicity lists. (Ibid.) As SmileCare points out, section 25249.6 “precludes businesses from knowingly and intentionally exposing individuals to chemicals known to the state to cause cancer or reproductive toxicity unless a warning notice is first given (in which case you may expose people to the chemicals all you want, subject to someone actually being injured).”
In this context, “expose” means “to cause to ingest, inhale, contact via body surfaces or otherwise come into contact with a chemical. An individual may come into contact with a chemical through water, air, food, consumer products and any other environmental exposure as well as occupational or workplace exposures.” (Reg. § 12201, subd. (f).) A “consumer products exposure” is an exposure that “results from a person’s acquisition, purchase, storage, consumption, or other reasonably foreseeable use of a consumer good, or any exposure that results from receiving a consumer service.” (Reg. § 12601, subd. (b).) An “occupational exposure” is an exposure to any employee “in the workplace of the employer causing the exposure.” (Reg. § 12601, subd. (c).) If required, a warning may be given in the manner described in the regulations—primarily by labels and signs. (Reg. § 12601.)
There were two other requests for admissions but Consumer Cause refused to admit or deny either statement, asserting that it lacked sufficient information to do so. The first asked Consumer Cause to admit “that a lifetime of exposure to mercury at the level [Consumer Cause] contend[s that SmileCare has] exposed individuals to does not pose a significant risk of causing cancer in the individuals.” The second asked Consumer Cause to admit “that exposure to mercury at [1,000] times the level [Consumer Cause] contend[s SmileCare has] exposed individuals to will have no observable effect on the individuals.”
That these discovery responses are as damning as SmileCare claimed in its motion for summary judgment is shown by the Attorney General’s suggestion that a “more sophisticated plaintiff’ might have responded differently. I do not believe a plaintiff’s sophistication or lack of it permits a court to disregard the party’s discovery responses. More to the point, I do not agree with the Attorney General’s characterization of Consumer Cause as an unsophisticated plaintiff. (See, e.g., <http://www.mckennaccuneo.com/articles/article_detail.cfin7126> [as of Aug. 9, 2001] [a law firm’s “client alert” warning that a “Proposition 65 ‘bounty-hunter’ plaintiff known as Consumer Cause, Inc.” had issued notices of intent to sue against the manufacturers and distributors of 77 medical devices, and describing Consumer Cause as “a prolific bounty-hunter plaintiff, having filed over a hundred Notices of Intent to Sue regarding a wide range of consumer products. Consumer Cause also has brought suit [under Proposition 65] against most of the major petroleum refiners and distributors doing business in California .... [ID [Some of these notices] include an ‘Invitation to Confer,’ in which counsel explains what Consumer Cause ‘seeks to gain’ by these Notices. Their objectives include creating a ‘channel of communication’ to resolve the matter ‘without litigation,’ a ‘small penalty ... or contribution,’ and an additional payment to ‘compensate’ the attorneys”]; <http://www/ calprop65.devices.html> [as of Aug. 9, 2001] [describing a March 1999 incident in which Consumer Cause sent 60-day notices to over 300 companies, alleging failures to warn about 22 listed chemicals in 76 different implanted medical devices, and an April 2000 case in which Consumer Cause “settled” a “nickel exposure” case involving penile implants for $50,000, with half denominated a “donation” to Consumer Cause, the other half as payment for Consumer Cause’s attorneys’ fees]; see also <http://www.calprop65.com/filings01.html> [as of Aug. 9, 2001] [a 10-page list of cases pending as of July 20, 2001, with at least a dozen in which Consumer Cause is the plaintiff;] <http://www.mccutchen.com/are/env/env_prop65_ unchartered.html> [as of Aug. 9, 2001] ; and see Equilon Enterprises v. Consumer Cause, Inc. (2000) 85 Cal.App.4th 654 [102 Cal.Rptr.2d 371] [as of Aug. 9, 2001], review granted Apr. 11, 2001, S094877; Yeroushalmi v. Miramar Sheraton (2001) 88 Cal.App.4th 738 [106 Cal.Rptr.2d 332].)
As should be obvious, I used the Internet to determine whether Consumer Cause is as unsophisticated as claimed by the Attorney General. But it may not be quite as obvious that the first six pages of the majority opinion are the product of the same kind of independent investigation—none of the “facts” concerning the debate about dental amalgam fillings are in evidence, none were discussed in the parties’ briefs. None of these “facts” have anything to do with the burden of proof issue before us, or with Consumer Cause’s ability to understand a straightforward interrogatory, or with its lawyer’s ability to object to an interrogatory as “ambiguous” if it cannot fairly be answered one way or the other.
Because the discovery responses are specifically cited in SmileCare’s separate statement, I am at a loss to understand the majority’s reliance on my opinion in United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [282 Cal.Rptr. 368], a case where the facts relied on were not included in the separate statement.
When Consumer Cause responded to SmileCare’s interrogatories and requests for admissions, Consumer Cause knew (by way of SmileCare’s answer) that SmileCare claimed exemption under section 25249.10, subdivision (c). Knowing that, Consumer Cause said it does not contend that SmileCare’s use of mercury defeats SmileCare’s reliance on the exemption. For this reason, I cannot understand my colleagues’ refusal to hold Consumer Cause to its admission. As SmileCare puts it: “If a plaintiff sued a defendant for negligence, plaintiff would have the burden of proof to establish negligence. But if plaintiff served defendant with an interrogatory asking defendant if it contends defendant was not negligent, and defendant replied, ‘No,’ defendant would be conceding that as soon as plaintiff makes any kind of prima facie showing of negligence, liability is established without opposition. That is exactly what happened here. Plaintiff admitted it had no evidence to rebut the Section 25249.10[, subdivision] (c) defense, and did not even contend that the defense did not apply.”
For anyone who doesn’t know the parable, it can be found in a number of books, including John Allen Paulos’s, Once Upon a Number, The Hidden Mathematical Logic of Stories (Basic Books 1998) page 17: “A bookish, somewhat nerdy man is telling his kids the Leo Rosten story about the famous rabbi who was asked by an admiring student how it was that the rabbi always had a perfect parable for any subject. The rabbi replied with a parable about a recruiter in the Tsar’s army who was riding through a small town and noticed dozens of chalked circular targets on the side of a barn, each with a bullet hole through the bullseye. The recruiter was impressed and asked a neighbor who this perfect shooter might be. The neighbor responded, ‘Oh that’s Shepsel, the shoemaker’s son. He’s a little peculiar.’ The enthusiastic recruiter was undeterred until the neighbor added, ‘You see, first Shepsel shoots and then he draws the chalk circles around the bullet hole.’ The rabbi grinned. ‘That’s the way it is with me. I don’t look for a parable to fit the subject. I introduce only subjects for which I have parables.’ ”