FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HOWARD ITEN, 

Plaintiff-Appellant, 

 v. 

COUNTY OF LOS ANGELES, 

Defendant-Appellee.

No. 22-55480 

D.C. No. 

2:21-cv-00486-

DDP-JEM 

OPINION

Appeal from the United States District Court

for the Central District of California

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted April 10, 2023

Seattle, Washington

Filed August 30, 2023

Before: Jay S. Bybee and Danielle J. Forrest, Circuit 

Judges, and Andrew P. Gordon,* District Judge.

Opinion by Judge Bybee;

Partial Concurrence by Judge Gordon

* The Honorable Andrew P. Gordon, United States District Judge for the 

District of Nevada, sitting by designation.
2 ITEN V. COUNTY OF LOS ANGELES

SUMMARY**

Standing/Contracts Clause

The panel reversed the district court’s dismissal for lack 

of standing of commercial property landlord Howard Iten’s 

complaint alleging that the County of Los Angeles’ 2020 

eviction moratorium, enacted following the outbreak of 

COVID-19, violated his rights under the Contracts Clause of 

the United States Constitution. 

The moratorium provided tenants with an affirmative 

defense against eviction if they gave monthly notice to the 

landlord that they were unable to pay rent. The district court 

found that because Iten’s tenant did not provide the required 

monthly notice or offer extenuating circumstances for failing 

to do so, Iten was free to evict his tenant and did not suffer 

an injury traceable to the moratorium. 

The panel held that Iten had standing to bring his 

Contracts Clause claim. Iten’s injury for Article III purposes 

did not depend on whether Iten’s tenant provided notice or 

was otherwise excused from doing so. Those questions went 

to the merits of the claim rather than Iten’s standing to bring 

suit. Iten alleged that the moratorium impaired his contract 

with his tenant because it altered the remedies the parties had 

agreed to at the time they entered into the lease. The panel 

held that these allegations were sufficient to plead an injury 

in fact and to state a claim under the Contracts Clause, and 

remanded to the district court for further proceedings. 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
ITEN V. COUNTY OF LOS ANGELES 3

Concurring in part, Judge Gordon disagreed that Iten 

plausibly alleged an injury-in-fact simply because the 

moratorium imposed additional terms. Moreover, there 

were factual questions about the lease that made remanding 

with a direction that Iten had standing premature. Because 

the district court raised the issue of standing sua sponte and 

the parties did not fully brief the issue, Judge Gordon would 

reverse the district court’s order dismissing the case with 

prejudice and remand for further development of the 

standing issue.

COUNSEL

Kathryn D. Valois (argued), Pacific Legal Foundation, Palm 

Beach Gardens, Florida; Lawrence G. Salzman and Damien 

M. Schiff, Pacific Legal Foundation, Sacramento, 

California; for Plaintiff-Appellant.

Edward L. Xanders (argued) and Timothy T. Coates, 

Greines Martin Stein & Richland LLP, Los Angeles, 

California; Andrew Baum and Jesse B. Levin, Glaser Weil 

Fink Howard Jordan & Shapiro LLP, Los Angeles, 

California; Sayuj Panicker, Senior Deputy County Counsel, 

Transportation Division; Dawn R. Harrison, Interim County 

Counsel; Los Angeles County Counsel’s Office, Los 

Angeles, California; for Defendant-Appellee.
4 ITEN V. COUNTY OF LOS ANGELES

OPINION

BYBEE, Circuit Judge:

In early 2020, following the outbreak of COVID-19, Los 

Angeles County passed the “Resolution of the Board of 

Supervisors of the County of Los Angeles Further Amending 

and Restating the Executive Order for an Eviction 

Moratorium During Existence of a Local Health Emergency 

Regarding Novel Coronavirus (COVID-19)” (the 

“Moratorium”). The Moratorium imposed temporary 

restrictions on certain residential and commercial tenant 

evictions. Moratorium § IV (July 14, 2021). It provided 

tenants with new affirmative defenses to eviction based on 

nonpayment of rent, prohibited landlords from charging late 

fees and interest, and imposed civil and criminal penalties to 

landlords who violate the Moratorium. Id. § V (July 14, 

2021). Howard Iten, a commercial landlord, sued the 

County, arguing that the Moratorium impaired his lease, in 

violation of the Contracts Clause of the U.S. Constitution. 

U.S. Const. art. I, § 10, cl. 1. The district court found that 

Iten had not alleged an injury in fact and dismissed his 

complaint for lack of standing. We reverse and remand.

I

In March 2020, Los Angeles County declared a state of 

emergency due to the COVID-19 pandemic and issued an 

Executive Order that imposed a temporary moratorium on 

evictions for nonpayment of rent by tenants impacted by 

COVID-19. In April 2020, the Board expanded the 

Executive Order to include all incorporated cities within the 

County. Moratorium § IV(B). The County extended the 

Moratorium’s end date several times and made other 

alterations that are immaterial to the case before us.
ITEN V. COUNTY OF LOS ANGELES 5

The Moratorium did not prohibit property owners from 

filing evictions in accordance with State law, but it provided 

tenants with an affirmative defense against eviction. Id. 

§ X(C). The Moratorium provided that “[a] Tenant shall not 

be evicted for nonpayment of rent, late charges, interest, or 

any other fees accrued if the Tenant demonstrates an 

inability to pay rent . . . due to Financial Impacts Related to 

COVID-19.” Id. § V(A)(1). To demonstrate such inability, 

the Tenant must have provided “notice to the Landlord 

within seven (7) days after the date that rent and/or such 

related charges were due, unless extenuating circumstances 

exist, that the Tenant is unable to pay.” Id. For commercial 

tenants with nine employees or fewer, the tenants “may 

provide, and Landlords must accept, a self-certification of 

inability to pay rent.” Id. § V(B)(2). The Moratorium also 

provided tenants with a year-long forbearance period after 

the Moratorium ends to pay overdue rent. Id. § V(C)(2). 

Additionally, the Moratorium prohibited the collection of 

late fees and interest for overdue moratorium-period rent. Id. 

§ VII. It also prohibited landlords from harassing tenants, 

which was defined, in part, as attempting to evict tenants 

who are protected by the Moratorium “based upon facts 

which the Landlord has no reasonable cause to believe to be 

true or upon a legal theory which is untenable under the facts 

known to the Landlord.” Id. § VIII(I). Landlords who failed 

to comply with the Moratorium are subject to criminal and 

civil penalties, including fines of up to $5,000 per day. Id. 

§ X(A)–(C).

According to the complaint, Iten is a mechanic and 

retired auto repair shop owner. He is part-owner of a 2,600-

square-foot commercial property located in Los Angeles 

County. In August 2015, Iten executed a five-year lease 

agreement, renting the property to a commercial tenant, who 
6 ITEN V. COUNTY OF LOS ANGELES

then subleased the space to an auto repair franchisee (the 

Tenant), who has fewer than ten employees. In April 2020, 

the Tenant notified Iten that he was “very adversely 

[a]ffected by Covid 19” and stopped paying rent. The 

Tenant paid no rent between April and August of 2020. With 

the five-year lease set to expire in August 2020, Iten 

negotiated a new five-year lease with the Tenant that 

included a promise to pay the back rent as well as future rent. 

The new lease commenced on September 1, 2020. The 

Tenant continued not paying rent.

In January 2021, Iten brought suit for declaratory relief 

under 28 U.S.C. §§ 2201–22 and for damages under 42 

U.S.C. § 1983 on the grounds that the Moratorium violated 

his rights under the Contracts Clause. U.S. Const. art. I, 

§ 10, cl. 1 (“No State shall . . . pass any . . . Law impairing 

the Obligation of Contracts.”). Iten alleged that the 

Moratorium unreasonably impairs the obligations of his 

lease agreement with the Tenant. Specifically, Iten claimed 

that because of the Moratorium, he was prohibited from 

evicting his Tenant and attempting to recover past rent, late 

fees, or interest. He also claimed that at the end of the lease, 

he “would have preferred to end his business relationship 

with the Tenant,” but that he “concluded [because of the 

Moratorium] that he had no prudent course of action open to 

him other than to negotiate a new lease with the Tenant so as 

to increase the chances of someday recovering the past-due 

rent.”

The County moved to dismiss Iten’s complaint, arguing 

that the Moratorium did not actually prohibit Iten from 

evicting his Tenant. The County argued that because the 

Tenant failed to provide monthly notices of his inability to 

pay rent or, alternatively, failed to articulate extenuating 

circumstances excusing him from providing those notices, 
ITEN V. COUNTY OF LOS ANGELES 7

the Tenant would not have qualified for the affirmative 

defense provided by the Moratorium. Iten was therefore free 

to evict the Tenant, and the Moratorium therefore did not 

injure Iten. The district court agreed and dismissed Iten’s 

complaint for lack of standing but granted leave to amend.

Iten inquired from his Tenant whether there were 

extenuating circumstances to excuse the Tenant from 

making the monthly notices. The Tenant responded that, 

“yes” there were extenuating circumstances, and that the 

Tenant did not believe the Moratorium required him to 

provide monthly notices. With this new information, Iten 

amended his complaint.

The County again moved to dismiss, this time on the 

merits. The district court, sua sponte, raised the standing 

issue once more. The court reasoned that “if the Moratorium 

does not prevent [Iten] from evicting his tenant, then . . . the 

Moratorium cannot have caused [Iten] any injury, and he 

lacks standing to bring suit.” Because Iten failed to allege 

that the “[T]enant gave timely notice of his inability to pay 

rent” or that the Tenant “specifically identified extenuating 

circumstances excus[ing] the [T]enant’s failure to give 

notice . . . [,] the Moratorium’s protections did not apply to 

[the Tenant]” and Iten “could not allege that the Moratorium 

caused him any injury.” The district court concluded that 

Iten lacked standing to bring his suit. “Having dismissed for 

lack of jurisdiction,” the district court declined to reach 

Iten’s claims under the Contracts Clause.

II

The district court’s dismissal without leave to amend is 

a final, appealable order. Gerritsen v. de la Madrid Hurtado, 

819 F.2d 1511, 1514–15 (9th Cir. 1987). We review de novo 

an order granting a motion to dismiss for lack of standing. 
8 ITEN V. COUNTY OF LOS ANGELES

Southcentral Found. v. Alaska Native Tribal Health 

Consortium, 983 F.3d 411, 416–17 (9th Cir. 2020). We 

assume all Iten’s allegations to be true and draw all 

reasonable inferences in his favor. Wolfe v. Strankman, 392 

F.3d 358, 362 (9th Cir. 2004).

III

We will begin with a discussion of standing and then 

consider how to apply those rules in the context of a claim 

brought under the Contracts Clause. 

A

Article III of the Constitution limits the “judicial Power” 

of the federal courts to “Cases, in Law and Equity, arising 

under this Constitution[ and] the Laws of the United States.” 

U.S. Const. art. III, § 2, cl. 1. This provision, commonly 

referred to as the “case-or-controversy” requirement of 

Article III, is an independent constraint on the jurisdiction of 

federal courts. The “case-or-controversy” requirement 

states “fundamental limits on federal judicial power in our 

system of government. The Art. III doctrine that requires a 

litigant to have ‘standing’ to invoke the power of a federal 

court is perhaps the most important of these doctrines.” 

Allen v. Wright, 468 U.S. 737, 750 (1984); see also Raines 

v. Byrd, 521 U.S. 811, 818 (1997). Accordingly, as the 

district court recognized, federal courts have a duty to raise, 

sua sponte, questions of standing before addressing the 

merits. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 

94 (1998). To establish standing, a plaintiff must show (1) 

an “injury in fact,” (2) a “causal connection between his 

injury and the conduct complained of,” and (3) that his injury 

will “‘likely’ . . . be ‘redressed by a favorable decision.’” 

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 561 (1992) 
ITEN V. COUNTY OF LOS ANGELES 9

(quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38, 

43 (1976)).

“[I]njury in fact [is] the ‘[f]irst and foremost’ of 

standing’s three elements.” Spokeo, Inc. v. Robins, 578 U.S. 

330, 338 (2016) (quoting Steel Co., 523 U.S. at 103). An 

injury in fact must be both “concrete and particularized” and 

“actual or imminent,” as opposed to “conjectural or 

hypothetical.” Lujan, 504 U.S. at 560 (cleaned up). A 

“particularized” injury must be personal, not a “generalized 

grievance.” Southcentral Found., 983 F.3d at 417 (quoting 

Thomas v. Mundell, 572 F.3d 756, 760 (9th Cir. 2009)). 

Moreover, the injury must be “concrete,” meaning that “it 

must actually exist. . . . ‘Concrete’ is not, however, 

necessarily synonymous with ‘tangible.’ Although tangible 

injuries are perhaps easier to recognize, . . . intangible 

injuries can nevertheless be concrete.” Spokeo, 578 U.S. at 

340.

The district court below, and the parties on appeal, have 

operated on the premise that Iten’s standing to bring a claim 

under the Contracts Clause turns on whether the Tenant gave 

Iten proper notice under the Moratorium, and, alternatively, 

“the availability to Iten’s tenant of the extenuating 

circumstances exception to the [M]oratorium’s monthly 

notice requirement.” Accordingly, the parties have 

suggested different interpretations of the term “extenuating 

circumstances” to argue why the Tenant does or does not 

qualify. Iten, for example, argues that the Tenant’s 

misinterpretation of the Moratorium counts as an 

“extenuating circumstance[]” to excuse him from otherwise 

providing monthly notices. The County argues that the 

Tenant’s mistake of law is not a qualifying “extenuating 

circumstance[].” But arguments from both sides over 

whether the Tenant actually qualifies for the Moratorium’s 
10 ITEN V. COUNTY OF LOS ANGELES

protections are arguments about how the Moratorium affects 

Iten’s rights as landlord.

Standing concerns who can bring a challenge to a 

particular law; it is an inquiry into whether and how the law 

in question affects the party who has brought the suit. The 

injury-in-fact inquiry seeks to assure that the plaintiff is not 

an intermeddler, generally unhappy with the law, but without 

any particular stake in the outcome. Whether the party can 

ultimately prevail in the suit is an entirely different question. 

A well-pleaded complaint typically has a demand for relief, 

which follows from the plaintiff’s “short and plain 

statement” of how the defendant has injured him. See Fed. 

R. Civ. P. 8(a). On a motion to dismiss, the district court 

may conclude that the plaintiff has failed to state a claim 

upon which relief can be granted, id. 12(b)(6); on summary 

judgment, the court may determine that there are no disputes 

of material fact and defendant is entitled to judgment as a 

matter of law, id. 56(a); or, after trial, the trier of fact may 

decide that the plaintiff has failed to prove his case and may 

take nothing from the suit. In all three of these instances, 

this may mean that the plaintiff did not suffer redressable 

injury; it inevitably means that the plaintiff will, in fact, 

recover nothing. We might say, conversationally, that the 

plaintiff was not in fact injured. But when the jury, for 

example, returns a verdict for the defendant, the court does 

not dismiss the case for lack of standing. Even if the jury 

determined that any damages were zero, the fact that the 

court can award no relief does not mean that the court lacked 

jurisdiction to hear the case. Although a merits question may 

look similar to the standing question of whether there is an 

injury in fact traceable to the relevant law under which the 

plaintiff has brought suit, confusing the two “conflate[s] 
ITEN V. COUNTY OF LOS ANGELES 11

standing with the merits.” Lazar v. Kronche, 862 F.3d 1186, 

1198–99 (9th Cir. 2017).

The difference between demonstrating injury in fact for 

standing and compensable injury to prevail on the merits is 

reflected in the rules of procedure. At the pleading stage, 

jurisdictional rules are addressed under Federal Rule of Civil 

Procedure 12(b)(1), while the failure to state a claim upon 

which relief may be granted—whether on the merits or 

because of a procedural rule—is governed by Rule 12(b)(6). 

See Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 

2011) (“Though lack of statutory standing requires dismissal 

for failure to state a claim [under Federal Rule of Procedure 

12(b)(6)], lack of Article III standing requires dismissal for 

lack of subject matter jurisdiction under Federal Rule of 

Civil Procedure 12(b)(1).”). The difference between the two 

rules is not merely academic. Many rules can be waived or 

forfeited by the parties, but jurisdictional rules—such as 

Article III standing—may be raised “at any time.” Fed. R. 

Civ. P. 12(h)(3); see Arbaugh v. Y & H Corp., 546 U.S. 500, 

506–07 (2006). 

Iten brought his complaint under the Contracts Clause. 

He did not allege that either the Moratorium or California 

landlord-tenant law created his cause of action. His claim is 

brought directly under the Constitution; the relief he seeks is 

a declaratory judgment under 28 U.S.C. § 2201 and damages 

under 42 U.S.C. § 1983. See S. Cal. Gas. Co. v. City of Santa 

Ana, 336 F.3d 885, 887 (9th Cir. 2003) (per curiam) 

(recognizing that Contracts Clause claims may be brought 

under § 1983). “Although standing in no way depends on 

the merits of the plaintiff’s [case] . . . , it often turns on the 

nature and source of the claim asserted.” Warth v. Seldin, 

422 U.S. 490, 500 (1975) (citation omitted). In order to 

understand whether Iten has standing to bring his Contracts 
12 ITEN V. COUNTY OF LOS ANGELES

Clause claim against the County, we will need to understand 

the nature of claims under the Contracts Clause. 

B

The Contracts Clause has no common-law or state-law 

antecedent. It first appeared in the Northwest Territory 

Ordinance of 1787, which Congress adopted in July 1787, 

just weeks before the constitutional convention began in 

Philadelphia. See Matthew J. Hegreness, Note, An Organic 

Law Theory of the Fourteenth Amendment: The Northwest 

Ordinance as the Source of Rights, Privileges, and 

Immunities, 120 Yale L.J. 1820, 1825 n.8 (2011); Denis P. 

Duffey, Note, The Northwest Ordinance as a Constitutional 

Document, 95 Colum. L. Rev. 929, 938, 960 (1995). Article 

II of the Ordinance provided in relevant part:

And, in the just preservation of rights and 

property, it is understood and declared, that 

no law ought ever to be made or have force 

in the said territory, that shall, in any manner 

whatever, interfere with or affect private 

contracts, or engagements, bona fine, and 

without fraud previously formed.

An Ordinance for the Government of the Territory of the 

United States North-West of the River Ohio, art. II (1787). 

The provision in the Northwest Ordinance was a response to 

the recently-concluded Shays’ rebellion, which was a protest 

over the enforcement of hard-money debts. In the postRevolutionary War era, many states adopted “debt 

moratoriums; laws allowing debts to be paid in gradual 

installments despite contrary terms of the contract; . . . and 

laws requiring creditors to accept paper money . . . as legal 

tender.” Michael W. McConnell, Contract Rights and 
ITEN V. COUNTY OF LOS ANGELES 13

Property Rights: A Case Study in the Relationship Between 

Individual Liberties and Constitutional Structure, 76 Calif. 

L. Rev. 267, 280–81 (1988). During this period “[m]ost 

states had . . . passed at least some temporary legislation 

designed on behalf of private debtors, most commonly laws 

postponing the collection of debts.” Forrest McDonald, E 

Pluribus Unum: The Formation of The American Republic 

1776–1790, 322 (2d ed. 1979); see Home Bldg. & Loan 

Ass’n v. Blaisdell, 290 U.S. 398, 454–64 (1934) (Sutherland, 

J., dissenting) (reviewing the history of the Contracts 

Clause); Douglas W. Kmiec & John O. McGinnis, The 

Contract Clause: A Return to the Original Understanding, 

14 Hast. Const. L.Q. 525, 533 (1987) (“State debtor relief 

legislation . . . was one of the major evils that the Clause was 

designed to eradicate.”). 

The Contracts Clause was the most litigated 

constitutional provision in the nineteenth century. See 

Barnitz v. Beverly, 163 U.S. 118, 121 (1896) (“No provision 

of the [C]onstitution of the United States has received more 

frequent consideration by this [C]ourt than that which 

provides that no state shall pass any law impairing the 

obligation of contracts.”). As the Court explained the Clause 

in Sturges v. Crowninshield, a contract consisted of two 

elements, the “agreement” and “the obligation.” 17 U.S. (4 

Wheat.) 122, 197 (1819). The “agreement” simply meant 

that the contracting parties agreed that each will “undertake[] 

to do, or not to do, a particular thing.” Id. The “obligation 

of [] contract” was the “law bind[ing] [the party] to perform 

his undertaking,” and “[a]ny law which releases a part of this 

obligation, must . . . impair it.” Id. The Contracts Clause 

protected the integrity of the contract as of the time that it 

was negotiated. States were free to change their laws, but 

those laws would apply to future contracts only. As the 
14 ITEN V. COUNTY OF LOS ANGELES

Court explained in Ogden v. Saunders, the state law at the 

time of the contract “whether . . . written or unwritten . . . is 

emphatically the law of the contract made within the State, 

and must govern it throughout, wherever its performance is 

sought to be enforced.” 25 U.S. (12 Wheat.) 213, 259 

(1827); see Green v. Biddle, 21 U.S. (8 Wheat.) 1, 84 (1823) 

(“Any deviation from [the contract’s] terms, by postponing, 

or accelerating, the period of performance which it 

prescribes, imposing conditions not expressed in the 

contract, or dispensing with the performance of those which 

are, however minute, or apparently immaterial, in their effect 

upon the contract of the parties, impairs its obligation.”). 

Bronson v. Kinzie, 42 U.S. (1 How.) 311 (1843), 

provides a good example of a case applying these principles. 

As a result of the Panic of 1837, many states passed debtors’ 

relief legislation to assist property holders who were losing 

their farms and homes through foreclosure. Illinois passed 

two laws regulating the foreclosure of mortgaged property. 

The first of these provided that property sold by execution 

could be repurchased by the debtor within one year at the 

purchase price plus ten percent. The second law provided 

that the foreclosed property could not be sold at auction for 

less than two-thirds of its appraised value. Id. at 312. 

Bronson challenged the retroactive effect of these two laws, 

arguing that they impaired his mortgage contract with 

Kinzie. The Court agreed with Bronson: The effect of the 

laws was “to deprive the party of his pre-existing right to 

foreclose the mortgage by a sale of the premises, and to 

impose upon him conditions which would frequently render 

any sale altogether impossible.” Id. at 320. “[S]uch 

modification of a contract by subsequent legislation, against 

the consent of one of the parties, unquestionably impairs its 

obligations, and is prohibited by the Constitution.” Id.
ITEN V. COUNTY OF LOS ANGELES 15

Strict application of the Contracts Clause ended in the 

Minnesota Moratorium case, Home Building & Loan 

Association v. Blaisdell, 290 U.S. 398 (1934). See 

Apartment Ass’n of Los Angeles Cnty., Inc. v. City of Los 

Angeles, 10 F.4th 905, 912 (9th Cir. 2021) (“Blaisdell

marked the beginning of the Supreme Court significantly 

curtailing the Contracts Clause’s prohibitive force.”). In 

Blaisdell, the Court rejected a Contracts Clause challenge to 

a Great Depression-era state law suspending foreclosures. 

Blaisdell, 290 U.S. at 416, 447. The Court recognized “a 

growing appreciation of public needs and of the necessity of 

finding ground for a rational compromise between 

individual rights and public welfare.” Id. at 442. The 

modern approach to the Contract Clause now considers not 

only whether the law impairs the obligation of the contract, 

but asks how “substantial” that impairment is and whether 

the state law is an “appropriate” and “reasonable” use of 

state police power. See Sveen v. Melin, 138 S. Ct. 1815, 

1821–22 (2018) (quoting Energy Reserves Group, Inc. v. 

Kansas Power & Light Co., 459 U.S. 400, 411–12 (1983)). 

Although, post-Blaisdell, a Contracts Clause claim analysis

requires additional inquiries, the merits of a Contracts 

Clause claim has always started with whether or not there is 

a change in a law (an “obligation”) that has impaired the 

original agreement of the parties.

C

We have recounted this history, because mortgage 

moratoria were, from the beginning, at the heart of the 

Contracts Clause. A law affecting or changing the terms the 

parties previously agreed to is the quintessential example of 

what the Contracts Clause was designed to prohibit. 

Whether, after the Court’s reformation of the Contracts 

Clause in Blaisdell, landlords or mortgage holders can 
16 ITEN V. COUNTY OF LOS ANGELES

prevail on a Contracts Clause claim is irrelevant to whether 

they have standing to bring such an action. In simple words, 

Iten has alleged that the Moratorium impaired his contract 

with his Tenant because it altered the “Obligation of [the] 

Contract[]”—the remedies the parties had agreed to, 

consistent with California landlord-tenant law at the time 

they entered into the lease. In his amended complaint, Iten 

pleaded:

Because of the eviction moratorium, Mr. 

Iten is prohibited from evicting, or attempting 

to evict, his Tenant for failing to pay in full 

and in a timely fashion under the lease. 

Further Mr. Iten is prohibited from charging 

late fees or interest, as well from attempting 

to recover back-rent that came due during the 

eviction moratorium period until twelve 

months following the moratoriums 

expiration—currently September 30, 2022.

But for the eviction moratorium, Mr. Iten 

would immediately initiate eviction 

proceedings to gain possession of his 

property and seek other remedies available to 

collect rent and other amounts due from his 

Tenant. 

Iten’s complaints about the Moratorium are not theoretical. 

Iten alleged that the Moratorium “substantial[ly]” impairs 

commercial lease contracts “because [it] significantly 

limit[s] the remedies available to commercial landlords, such 

as Mr. Iten, when tenants breach their commercial leases, 

and dramatically undercut the economic value and security 

of those contracts.”
ITEN V. COUNTY OF LOS ANGELES 17

At oral argument, the County candidly admitted that its 

Moratorium not only applied to Iten, but that it was leases 

like the Iten-Tenant lease that the Moratorium was designed 

to reach. Oral Arg. at 15:55–16:26. The County’s forthright 

admission follows from the face of the Moratorium. Section 

V declared “[a] temporary moratorium on evictions of 

Tenants.” Section III(K) defined “Tenant” as “Tenants of 

commercial property,” while Section III(D) defined 

“Landlord” to include “An owner of real property . . . for 

commercial rental purposes.” The Moratorium then set forth 

in great detail new, temporary restrictions on Tenant 

evictions. It could not be clearer that the Moratorium 

applied to commercial landlords like Iten and restricted the 

remedies he thought he could employ.

The district court focused narrowly on the question of 

whether Iten could, in fact, successfully evict his Tenant 

under the Moratorium. As the court analyzed it, “if the 

Moratorium does not prevent [Iten] from evicting his tenant, 

then as a matter of course, the Moratorium cannot have 

caused [Iten] any injury, and he lacks standing to bring suit.” 

With respect, we think this is not the right question. To show 

injury and causation for standing purposes, Iten need not 

allege that he would have been able to evict his Tenant “but 

for” the Moratorium. Nor need he show that his Tenant 

qualifies for the affirmative defense provided by the 

Moratorium. Rather, Iten need only allege that the 

Moratorium imposed additional rights, remedies, conditions, 

or procedures that impair the obligations to which he and his 

Tenant had contracted. Iten has made that showing here. He 

has alleged that Los Angeles County changed the framework 

for his lease with his Tenant by creating an additional 

affirmative defense for the Tenant, enacting a year-long 

forbearance period for unpaid rent, prohibiting Iten from 
18 ITEN V. COUNTY OF LOS ANGELES

charging late fees or interest, and adding civil and criminal 

penalties beyond those previously provided under California 

landlord-tenant law. Furthermore, the value of a commercial 

property is often tied to the value of its leases. Iten alleged 

that the Moratorium “undercut the economic value and 

security of [his commercial leases].” Thus, so long as the 

Moratorium was in effect, the economic value of Iten’s 

property, as influenced by the value and strength of the 

leases of that property, was diminished, and “[a] specific, 

concrete, and particularized allegation of a reduction in the 

value of property owned by the plaintiff is sufficient to 

demonstrate injury-in-fact at the pleading stage.” Barnum 

Timber Co. v. EPA, 633 F.3d 894, 898 (9th Cir. 2011).

The district court was concerned with whether the 

Tenant had given Iten sufficient notice under the 

Moratorium to qualify as a defense to eviction. 

Section V(A) of the Moratorium required tenants to give 

notice to the landlord of the inability to pay rent “within 

seven (7) days after the date that rent and/or such related 

charges were due, unless extenuating circumstances exist.” 

Iten pleaded that the Tenant gave him oral notice that he was 

“adversely [a]ffected by Covid 19” and would “not be able 

to pay the rent.” The district court faulted Iten for not 

pleading that he had received timely notice from his Tenant, 

or that his Tenant had extenuating circumstances excusing 

timely notice; without the proper notice, according to the 

district court, Iten was entitled to evict the Tenant and, 

therefore, was not subject to the Moratorium.

We have several observations. First, the district court 

was applying the terms of the Moratorium itself to Iten—a 

near sure sign that Iten was subject to the Moratorium and 

had standing to challenge its constitutionality. See Lujan, 

504 U.S. at 561–62 (where “the plaintiff is himself an object 
ITEN V. COUNTY OF LOS ANGELES 19

of the action . . . at issue . . . there is ordinarily little question 

that the action . . . has caused him injury”). Second, at this 

stage of the proceedings, it was improper to speculate how a 

California court would have responded to an eviction action 

brought by Iten. In effect, the district court declared that Iten 

would have prevailed in an eviction action because the 

Tenant did not give him proper notice. This proves too 

much, as it effectively gave Iten a green light to evict the 

Tenant. This is a surprising result from a proceeding in 

which the Tenant was not a party. If, in a subsequent 

proceeding, the California courts took a different view, Iten 

would be subject to inconsistent rulings. Even worse, if Iten 

tried to evict the Tenant, the Tenant might have had a civil 

action for harassment under Section X of the Moratorium, 

which could cost Iten up to $5,000 per day; in the extreme, 

Iten could have been subject to administrative fines and 

criminal penalties as well. Moratorium §§ IX, X. Third, we 

cannot see that the adequacy of the Tenant’s notice is itself 

a jurisdictional prerequisite for an eviction action in 

California. Iten thought the notice was adequate; if anyone 

had the right to enforce a strict notice requirement, it is Iten. 

At least in federal court, objections to procedural 

requirements can be waived or forfeited. See Fed. R. Civ. 

P. 12(h)(1). A California court might well conclude that Iten 

waived the formalities of notice under the Moratorium. See, 

e.g., Kern Sunset Oil Co. v. Good Roads Oil Co., 6 P.2d 71, 

73–74 (Cal. 1931) (“The acceptance of rent by the landlord 

from the tenant, after the breach of a condition of the lease, 

with full knowledge of all the facts, is a waiver of the 

breach.”); Sosin v. Richardson, 26 Cal. Rptr. 610, 613 (Cal. 

Ct. App. 1962) (“A condition is waived when a promisor . . 

. justifies the promisee in believing that a conditional 

promise will be performed despite the failure to perform the 
20 ITEN V. COUNTY OF LOS ANGELES

condition, and the promisee relies upon the promisor’s

manifestations to his substantial detriment.”). Even if we 

considered a notice requirement to be similar to an 

exhaustion-of-remedies requirement, “an exhaustion 

requirement . . . is a quintessential claim-processing rule,” 

and is not jurisdictional. Santos-Zacaria v. Garland, 143 S. 

Ct. 1103, 1112 (2023). Finally, the district court’s 

speculation misconceives the nature of a Contracts Clause 

claim. Iten is protesting the fact that he even has to run the 

gauntlet of additional procedures that were not in place when 

the Tenant signed the lease.

In any event, if the adequacy of the Tenant’s notice is 

relevant at all, it is better addressed as a question going to 

the merits rather than to Iten’s standing to bring suit. Any 

question of whether Iten can successfully evict his Tenant 

might be relevant to “whether the state law has ‘operated as 

a substantial impairment of a contractual relationship.’” 

Sveen, 138 S. Ct. at 1821–22 (emphasis added) (quoting 

Allied Structural Steel Co v. Spannaus, 438 U.S. 234, 244 

(1978)). In other words, whether the state law impairs Iten’s 

ability to evict the Tenant—and whether the Tenant qualified 

for the Moratorium’s protection—are important questions. 

But such questions go to the first step in a Contracts Clause 

merits analysis, not standing. And whether Iten “will be 

successful on the merits in [his] suit against [the County] 

does not affect whether [Iten] has standing to pursue such a 

suit.”1 Barnum Timber Co., 633 F.3d at 901 n.4.

1 The County also argues that Iten lacks standing because any claimed 

injury was “self-inflicted” because Iten voluntarily chose to enter into a 

new lease with the Tenant after the Moratorium had been in place. Iten 

alleges he was forced to do so because “he had no prudent course of 

action open to him other than to negotiate a new lease” and did so “to 
ITEN V. COUNTY OF LOS ANGELES 21

D

There are few cases dealing with standing to bring a 

Contracts Clause action, but we think that those cases that 

do exist reinforce these principles. In Lazar v. Kroncke, 

Kroncke established an individual retirement account (IRA), 

in which he named Lazar, his wife, as his beneficiary. 862 

F.3d 1186, 1192 (9th Cir. 2017). They later divorced, and 

Kroncke subsequently died. Id. Meanwhile, Arizona passed 

a revocation-on-divorce statute, which automatically 

revoked a beneficiary’s interest upon divorce. Id. The 

statute applied retroactively back to the time the IRA was 

established. Id. at 1193. The administrator of Kroncke’s 

estate made a demand for the IRA proceeds, relying on 

Arizona’s revocation-on-divorce statute. Id. at 1192.

Lazar brought suit, challenging the statute as a violation 

of the Contracts Clause. Lazar claimed that the statute 

interfered with her contractual right to the IRA funds. Id. at 

1198. The lower court dismissed for lack of standing 

because Lazar merely possessed an expectation interest in 

the IRA. Id. We disagreed with the district court, finding 

that the court has “conflated standing with the merits.” Id. 

We held that Lazar had standing for her Contracts Clause 

claim because the revocation-on-divorce statute “operated to 

extinguish Lazar’s valid expectancy interest in the IRA—an 

increase the chances of someday recovering the past-due rent.” In 

general, parties “cannot manufacture standing merely by inflicting harm 

on themselves based on their fears of hypothetical future harm that is not 

certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 

(2013). More particular to Contracts Clause claims, a “statute cannot be 

said to impair a contract that did not exist at the time of its enactment.” 

Texaco, Inc. v. Short, 454 U.S. 516, 531 (1982). We leave to the district 

court to determine whether the timing of the Moratorium, and its various 

amendments, substantially impaired Iten’s leases with his Tenant.
22 ITEN V. COUNTY OF LOS ANGELES

injury which is actual, concrete, and particularized.” Id. at 

1198–99. We proceeded to decide the case on the merits, 

and ultimately held there was no substantial contractual 

impairment because “Lazar never possessed a vested 

contractual right,” and she therefore “suffered no contractual 

impairment.” Id. at 1200; see also Greene v. Dayton, 806 

F.3d 1146, 1150 (8th Cir. 2015) (finding that the complaint 

did not adequately allege a violation of the Contracts Clause; 

implicitly rejecting defendant’s claim that plaintiffs lacked 

standing). 

Several courts have considered standing to bring 

Contracts Clause challenges to COVID-related moratoria. 

Recently the Southern District of New York considered the 

standing of landlords to challenge a COVID-era law that 

made personal liability guaranties for commercial leases 

unenforceable for rent not paid between March 2020 and 

June 2021. Melendez v. City of New York, ___ F. Supp. 

3d ___, ___, No. CV-5301, 2023 WL 2746183 (S.D.N.Y. 

Mar. 31, 2023). The court held that the landlords had 

standing. Id. at *6–7. As to injury in fact, the court observed 

that the law “invalidated Plaintiffs’ bargained-for contract 

rights,” and that “by being forced to recoup expected rent 

payment by alternative means, Plaintiffs demonstrate[d] 

precisely the kind of ‘direct and personal stake in the 

controversy’ that the injury-in-fact inquiry seeks to answer.” 

Id. at *6. The Southern District of California reached a 

similar conclusion with respect to landlords challenging 

eviction moratoria in San Diego. Bols v. Newsom, 515 F. 

Supp. 3d 1120, 1131 (S.D. Cal. 2021). The court concluded 

that a moratorium lasting “even as little as 29 days is a 
ITEN V. COUNTY OF LOS ANGELES 23

sufficient time to impose an actual injury.” Id. at 1131;2 see 

also Grano v. Rappahannock Elec. Coop., 552 F. Supp. 3d 

563, 571–72 (W.D. Va. 2021) (plaintiffs had standing under 

the Contracts Clause to challenge a law relieving easement 

holders from paying compensation to plaintiff-landowner 

for installation of broadband equipment). On the other hand, 

in Case v. Ivey, an Alabama district court concluded that the 

plaintiffs lacked standing to sue under the Contracts Clause 

where COVID-19 restrictions, such as masking and social 

distancing, discouraged customers from keeping their 

monthly chiropractic memberships but did not require 

cancellation of the contracts. 542 F. Supp. 3d 1245, 1264–

65 (M.D. Ala. 2021). In that case, the court found that any 

injury was not traceable to the health measures but to the 

independent actions of third parties, namely, the 

chiropractor’s customers. Id. at 1265; see also Bochese v. 

2 We note that courts around the country have considered whether 

COVID-19 eviction moratoria violate the Contracts Clause. These cases 

have involved landlords subject to state and local moratoria, and nearly 

all have been decided on the merits. See, e.g., Apartment Ass’n of Los 

Angeles Cnty., 10 F.4th at 913–17 (affirming the denial of a preliminary 

injunction because the Apartment Association was unlikely to succeed 

on the merits of their Contracts Clause claim); Heights Apartments, LLC 

v. Walz, 30 F.4th 720, 729 n.8 (8th Cir. 2022), rehearing denied, 39 F.4th 

479, 481 (8th Cir. 2022) (holding that the plaintiff plausibly alleged a 

Contracts Clause claim and recognizing that this decision conflicts with 

Apartment Ass’n, 10 F.4th 905); see also Auracle Homes, LLC v. 

Lamont, 478 F. Supp. 3d 199, 224–25 (D. Conn. 2020) (concluding that 

the state moratorium did not “operate as a substantial impairment of [the 

plaintiffs’] contractual rights” because it did not “eliminate [the 

plaintiffs’] contractual remedies for evicting nonpaying tenants”); 

Baptiste v. Kennealy, 490 F. Supp. 3d 353, 381–87 (D. Mass. 2020) 

(similar); HAPCO v. City of Philadelphia, 482 F. Supp. 3d 337, 349–53 

(E.D. Pa. 2020) (similar); Elmsford Apartment Associates, LLC v. 

Cuomo, 469 F. Supp. 3d 148, 168–72 (S.D.N.Y. 2020) (similar).
24 ITEN V. COUNTY OF LOS ANGELES

Town of Ponce Inlet, 405 F.3d 964, 984–85 (11th Cir. 2005) 

(holding that the plaintiff lacked standing to raise a Contracts 

Clause claim based on rescission of a contract between a 

town and a developer where the plaintiff was neither a party 

to nor an interested beneficiary of the contract); TF-Harbor, 

LLC v. City of Rockwall, 18 F. Supp. 3d 810, 818–22 (N.D. 

Tex. 2014) (holding that the plaintiffs did not have standing 

under the Contracts Clause to challenge an ordinance 

regulating property development where the plaintiffs were 

not the property owner and would suffer economic injury 

from independent action of a third party).

Here, we conclude that the district court conflated 

constitutional injury with contractual impairment. Iten’s 

injury for Article III purposes does not depend on whether 

the Tenant provided notice or was otherwise excused from 

doing so. Nor would it depend on the Tenant’s decision to 

raise (or not raise) the Moratorium as an affirmative defense 

in an unlawful detainer proceeding. For purposes of 

standing, Iten alleged facts sufficient to state a claim that he 

suffered an injury traceable to the Moratorium for purposes 

of standing: He alleged that he was a commercial landlord 

living in Los Angeles County; that both he and the Tenant 

believed that the Moratorium applied to their lease 

agreement; and that the Moratorium altered the terms of his 

contract with his Tenant. Iten alleged that the Moratorium 

limited the legal procedures he may take to evict his Tenant 

for nonpayment of rent; that it prevented him from charging 

late fees or interest, which his lease otherwise allows him to 

do; and that it imposed additional penalties that chilled his 

ability to test the viability of eviction. In sum, Iten, at least 

for purposes of filing a complaint, has alleged that the 

obligations of his contract had been “taken away or 

materially lessened.” Lynch v. United States, 292 U.S. 571, 
ITEN V. COUNTY OF LOS ANGELES 25

580 (1934). That is sufficient to state a claim under the 

Contracts Clause. See Sveen, 138 S. Ct. at 1822 (stating that 

a Contracts Clause claim considers “the extent to which the 

law undermines the contractual bargain, interferes with a 

party’s reasonable expectations, and prevents the party from 

safeguarding or reinstating his rights”).

IV

Iten has standing to bring his Contracts Clause claim. He 

has pleaded facts sufficient to demonstrate that he has 

suffered an injury in fact that is traceable to the County’s 

Moratorium. We express no view on the merits of Iten’s 

claim. We reverse the judgment and remand to the district 

court for further proceedings.3

REVERSED and REMANDED.

GORDON, J., concurring in part.

I do not agree with the principle implicit in the majority 

opinion that Iten and every other landlord in the county had 

standing to challenge the Moratorium the instant it went into 

effect because the Moratorium “imposed additional rights, 

remedies, conditions, or procedures that impair the 

obligations” to which the landlords and their tenants did not 

agree. A plaintiff asserting a Contracts Clause claim must 

show an injury-in-fact to satisfy Article III standing, just as 

any other plaintiff would. An injury-in-fact “cannot be 

conjectural or hypothetical.” See Carney v. Adams, 141 S. 

Ct. 493, 498 (2020) (quotation omitted). But the majority’s 

theory would confer standing on a landlord whose tenant 

3 We deny the County’s requests for judicial notice as moot.
26 ITEN V. COUNTY OF LOS ANGELES

never stopped paying rent even though that landlord did not 

suffer a concrete, particularized, non-hypothetical injury 

from any of the Moratorium’s provisions. Article III 

standing requires more.

In addition, as the majority opinion recognizes in 

footnote one, we lack sufficient information regarding when 

the Moratorium went into effect vis-à-vis when Iten 

voluntarily chose to enter into a new lease with the Tenant. 

As a result, Iten has not plausibly alleged he has standing 

because if he entered into the new lease after the Moratorium 

went into effect, then the Moratorium cannot plausibly be a 

change in the law impairing his contract and he would not 

have adequately alleged an injury-in-fact. See Home Bldg. 

& Loan Ass’n v. Blaisdell, 290 U.S. 398, 435 (1934) (noting 

“existing laws [are] read into contracts in order to fix 

obligations as between the parties”); Olson v. California, 62 

F.4th 1206, 1221 (9th Cir. 2023) (stating that a Contracts 

Clause claim requires a change in the law that impaired a 

contractual relationship). Consequently, remanding with a 

direction that Iten has standing is premature.

Assuming for the moment that the new lease was signed 

before the Moratorium went into effect, Iten still might lack 

standing. Iten alleged that, but for the Moratorium, he would 

seek to “collect rent and other amounts due from his 

Tenant.” The section of the Moratorium that prohibits 

landlords from collecting interest or late fees does not 

specify that it applies only to tenants who are entitled to 

eviction protection. Therefore, even if Iten’s Tenant failed 

to provide adequate notice to come within the Moratorium’s 

eviction protection, Iten may have standing to challenge the 

fee prohibition based on both his inability to collect interest 

and late fees and the resulting potential impact on his 

commercial property’s value. On the other hand, reading the 
ITEN V. COUNTY OF LOS ANGELES 27

Moratorium as a whole may lead to the conclusion that all of 

its protections apply only to tenants who are entitled to 

eviction protection. In that case, Iten may not have standing 

to challenge the fee prohibition because he has not plausibly 

alleged that his Tenant qualified for the Moratorium’s 

protections. The record is unclear on this point because Iten 

never argued below or on appeal that regardless of whether 

his Tenant qualified for eviction protection, he had standing 

because he was prohibited from collecting late fees and 

interest. Rather, he argued that he had sufficiently alleged 

that his Tenant was entitled to protection under the eviction 

moratorium.1 As a result, standing based on the fee 

prohibition was not addressed by the parties or the district 

court. This is an additional reason why it is appropriate to 

remand the standing issue to the district court for further 

analysis.

Because the district court (properly) raised the standing 

issue sua sponte during a hearing on the County’s motion to 

dismiss, the parties did not fully brief standing, and it is not 

clear that amendment would be futile. Iten may be able to 

plausibly allege facts giving him standing to challenge the 

Moratorium’s various provisions. Thus, I would reverse the 

district court’s order dismissing the case with prejudice and 

remand for further development of the standing issues.2

1 See Appellant’s Opening Br. at 2, 11 (stating that the “moratorium’s 

protections are triggered” when a tenant provides the required notice of 

financial impacts related to COVID-19, and that the “causal connection 

between the County’s moratorium and Iten’s injuries-in-fact turns upon 

the availability to Iten’s tenant of the extenuating circumstances 

exception to the moratorium’s monthly notice requirement”).

2 Dismissal with prejudice is improper in any event because dismissal for 

lack of subject matter jurisdiction is not an adjudication on the merits. 
28 ITEN V. COUNTY OF LOS ANGELES

No further development of the standing issue is needed 

under the majority opinion, as it holds that Iten has standing. 

Yet after finding that he has standing, the majority does not 

address whether Iten has plausibly alleged a claim. The 

County’s motion giving rise to this appeal argued that Iten 

failed to plausibly allege a claim. Whether a complaint 

plausibly states a claim is a question of law. Heimrich v. 

Dep’t of the Army, 947 F.3d 574, 577 (9th Cir. 2020); see 

also Tahara v. Matson Terminals, Inc., 511 F.3d 950, 955 

(9th Cir. 2007) (stating we “may affirm the district court for 

any reason supported by the record”). Iten raised the issue 

in his opening brief, it has been fully addressed by the 

parties, and there is no need for factual development below 

to determine whether the amended complaint plausibly 

alleged a violation of the Contracts Clause. If Iten has 

standing, judicial economy weighs in favor of the majority 

deciding the issue.

I therefore concur in the decision to remand, but I do not 

agree that Iten has plausibly alleged standing on this record. 

Hampton v. Pac. Inv. Mgmt. Co. LLC, 869 F.3d 844, 846 (9th Cir. 2017) 

(“Dismissals for lack of subject-matter jurisdiction . . . must be without 

prejudice, because a lack of jurisdiction deprives the dismissing court of 

any power to adjudicate the merits of the case.”).