NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 22 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANOTHER PLANET ENTERTAINMENT, No. 21-16093

LLC,

D.C. No. 3:20-cv-07476-VC Plaintiff-Appellant,

v. MEMORANDUM*

VIGILANT INSURANCE COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Argued and Submitted December 9, 2022 Submission Withdrawn December 28, 2022 Resubmitted July 22, 2024 San Francisco, California

Before: BEA, CHRISTEN, and MILLER, Circuit Judges.**

Another Planet Entertainment, LLC, appeals the district court’s order

granting Vigilant Insurance Company’s motion to dismiss pursuant to Federal Rule

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** Judge Miller was drawn at random to replace Judge Ikuta. Judge Miller has reviewed the briefs, the record, and the recording of oral argument. of Civil Procedure 12(b)(6). We have jurisdiction pursuant to 28 U.S.C. § 1291.

We assume the parties’ familiarity with the facts and recite them only as necessary.

We asked the California Supreme Court to answer a certified question because we

concluded that resolution of this question of California law “could determine the

outcome of a matter pending in [this] court,” and “[t]here is no controlling

precedent” from the California Supreme Court. Cal. R. Ct. 8.548(a). We stayed

this appeal pending the California Supreme Court’s answer. On May 23, 2024, the

California Supreme Court answered the certified question, Another Planet Ent.,

LLC v. Vigilant Ins. Co., 548 P.3d 303 (Cal. 2024), and we now affirm the district

court’s order dismissing Another Planet’s complaint.

1. The California Supreme Court’s response resolves this appeal in favor of

Vigilant. Another Planet’s entire appeal turns on whether the COVID-19 virus can

cause “direct physical loss or damage” to property within the meaning of the

insurance provisions under which it seeks coverage. The certified question was:

“Can the actual or potential presence of the COVID-19 virus on an insured’s

premises constitute ‘direct physical loss or damage to property’ for purposes of

coverage under a commercial property insurance policy?” Another Planet Ent.,

LLC v. Vigilant Ins. Co., 56 F.4th 730, 734 (9th Cir. 2022). The California

Supreme Court answered: “No, the actual or potential presence of COVID-19 on

an insured’s premises generally does not constitute direct physical loss or damage

2 to property within the meaning of a commercial property insurance policy under

California law.” Another Planet Ent., 548 P.3d at 308. That is because “direct

physical loss or damage to property requires a distinct, demonstrable, physical

alteration to property” that “must result in some injury to or impairment of the

property as property.” Id. at 307. Applying this principle, we conclude that

Another Planet failed to allege “direct physical loss or damage” necessary to state a

claim for loss of business income.

2. Another Planet has forfeited its argument that the district court erred in

dismissing its claims of bad faith and fraud by failing to “specifically and distinctly

argue the issue in [its] opening brief.” United States v. Kama, 394 F.3d 1236, 1238

(9th Cir. 2005).

3. In light of the California Supreme Court’s response, the district court did

not err when it denied Another Planet leave to amend its complaint a second time

on the ground that further amendment would be futile. “We review the denial of

leave to amend for an abuse of discretion, but we review the question of futility of

amendment de novo.” United States v. United Healthcare Ins. Co., 848 F.3d 1161,

1172 (9th Cir. 2016) (citations omitted). We recognize that the California

Supreme Court’s response does not categorically preclude coverage for property

damage and other losses caused by the COVID-19 virus. See Another Planet Ent.,

548 P.3d at 328 (“[W]e cannot and do not decide whether the COVID-19 virus can

3 ever constitute direct physical loss or damage to property . . . .”). Nevertheless,

Another Planet’s allegations must meet the definition of direct physical loss or

damage to property under California law. Id.; see also id. at 307. Another Planet

contends in a conclusory fashion that, in repleading, it would “focus on the issues

of persistence and remediation,” but the California Supreme Court’s response

makes clear that mitigation efforts are not reimbursable without underlying loss or

damage to property. Id. at 330. Another Planet fails to state what additional facts

it would plead to cure this deficiency in its allegations. Accordingly, amendment

would be futile. See Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1052 (9th

Cir. 2008).

AFFIRMED.

4