1 NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: GARDEN FRESH RESTAURANTS, LLC,

Debtor,

LESLIE T. GLADSTONE, Chapter 7 Trustee for Garden Fresh Restaurants , LLC
,

Plaintiff

- Appellant,

v.

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA ; and THE TRAVELERS LLOYDS INSURANCE COMPANY
,
Defendants

- Appellees. No. 22

- 56205

D.C. No. 3 : 21

- cv

- 01440

- JLS

- KSC

MEMORANDUM *

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino , District Judge, Presiding

Submitted November 7, 2023 ** Phoenix, Arizona

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

NOV 15 2023

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Before: COLLINS and HAWKINS, Circuit Judges, and SEEBORG, ** * District Judg e

.
Plaintiff Leslie T. Gladstone is the Chapter 7 Trustee for Garden Fresh

Restaurants, LLC. Defendants are, collectively, Travelers Property Casualty
Company of America and Travelers Lloyds Insurance Company. Plaintiff bought a
commercial insurance policy from Defendants spanning the period of April 1, 2019

to April 1, 2020. Plaintiff now seeks insurance coverage of business losses
stemming from the COVID

- 19 pandemic. Plaintiff appeals from the district court’s
order dismissing her complaint with prejudice.

We have jurisdiction under 28 U.S.C. § 1291. An appellate court reviews de
novo an order granting a motion to dismiss for failure to state a claim under

Fed eral R ule of Civ il P rocedure 12(b)(6). See Steckman v. Hart Brewing, Inc.
, 143
F.3d 1293, 1295 (9th Cir. 1998). The factual allegations in the complaint are
accepted as true and construe d in the light most favorable to the Plaintiff

. L.A.

Lakers, Inc. v. Fed. Ins. Co ., 869 F.3d 795, 800 (9th Cir. 2017).

We affirm the district court’s dismissal of Plaintiff’s complaint. Plaintiff

contend s that Defendants must cover business losses arising from COVID

- 19.
However, the insurance policy contains a virus exclusion provision that bars
coverage for “loss or damage caused directly or indirectly by...[a]ny virus,

*** The Honorable Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation.3

bacterium or other microorganism that induces or is capable of inducing physical
distress, illness or disease.” This provision bars coverage of the losses Plaintiff
alleges. See Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am. , 15 F.4th 885, 8 93 (9th
Cir. 2021).

Plaintiff fails plausibly to aver that anything other than the COVID

- 19
pandemic is the efficient proximate cause of the losses. See Mudpie , 15 F.4th at
894 (citation omitted). Furthermore, California has not adopted the doctrine of
regulatory estoppel, so we reject Plaintiff’s argument that the virus exclusion
provision is unenforceable

. Because the virus exclusion provision serves as an
independent basis to affirm the district court, we need not reach Plaintiff’s

contention that COVID

- 19 caused direct phy sical loss or damage to the insured
property, but we note that the Ninth Circuit has certified that question to the

California Supreme Court in Another Planet, Entertainment LLC v. Vigilant

Insurance Co. , 56 F.4th 730 (9th Cir. 2022). No additional question need be
certified to the California Supreme Court.
The virus exclusion provision independently bars coverage of Plaintiff’s

losses. The district court’s grant of Defendants’ motion to dismiss is AFFIRMED

.