Antitrust Law Daily Wrap Up, ADVERTISING—Cal. App.: Dentist, tooth veneer manufacturer fend off fraud claims, (Sep 11, 2014)

By Greg Hammond, J.D.

A dentistry patient’s claims that a dentist and the manufacturer of Lumineer brand tooth veneers engaged in fraud and made numerous false representations were properly dismissed, the California appellate court in San Jose decided. In affirming the trial court’s granting of the dentist’s and manufacturer’s motion for judgment on the pleadings, the appellate court agreed that the patient’s false advertising claims were inadequately pleaded (Martinez v. Den-Mat Corp., September 10, 2014, Márquez, M.).

Background. In 2008, Martha Martinez consulted with her dentist, Dr. Salem, about restoring her teeth with Lumineers, a veneer brand manufactured by Den-Mat Corp. Dr. Salem provided Martinez with a Lumineers brochure that stated—in part—“ LUMINEERS can make everyone’s smile more beautiful,” and “Ask for LUMINEERS by name.” The trial court granted Dr. Salem’s and Den-Mat’s motion for judgment on the pleadings, finding that Martinez failed to adequately plead her intentional and negligent misrepresentation and false advertising claims. Although Martinez was granted leave to file an amended complaint, she declined to do so. Instead, Martinez appealed the lower court’s decision.

Misrepresentation. To state a valid claim for intentional or negligent misrepresentation, consumers must first allege a false statement of fact. However, neither of the alleged misrepresentations were deemed false statements of fact in this case. Specifically, the court determined that the statement that Lumineers “can make everyone’s smile more beautiful,” is a general statement of opinion, amounting to mere sales puffery. In addition, the statement, “Ask for LUMINEERS by name,” was also not a statement of fact, and could not be considered true or false for purposes of a misrepresentation claim. Lastly, allegations of other false statements and a failure to provide warnings were rejected, because they were not raised in the original complaint.

False advertising. According to the court, Martinez used the same two allegedly false representations to support her California false advertising law claim. However, the court determined that the alleged misrepresentations were not in fact “untrue or misleading,” which is required to make a showing of false advertising. Further, Martinez’s argument that the statement, “Ask for LUMINEERS by name” is an implied promise was rejected, as no reasonable consumer would draw such an inference. Lastly, the court rejected Martinez’s argument that the trial court erred by applying the “reasonable consumer” standard—in which Martinez argued she was part of a vulnerable class by law as a prospective dentistry patient—reasoning that the original complaint was completely devoid of any allegation regarding Martinez’s inclusion in a vulnerable class.

The case number is H039477.

Attorneys: David Michael Tichane for Martha Martinez. Christopher Kian Wee Teng (Guichard Teng & Portello APC) for Den-Mat Corp. and Den-Mat Holdings, LLC.

Companies: Den-Mat Corp.; Den-Mat Holdings, LLC

Cases: Advertising CaliforniaNews