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NOT FOR PUBLICATION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 APPEALS
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Before: COLLINS and HAWKINS, Circuit Judges, and SEEBORG,*** District 

Judge.

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

Federal Rule of Civil Procedure 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 construed 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

contends 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.
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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, 893 (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 physical 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.