exculpatory clause in California

2020An exculpatory clause that does not specifically mention negligence “would ordinarily be construed as shielding [the lessor] from liability ‘only for passive negligence, not for active negligence.’ ” (Burnett v. Chimney Sweep, LLC (2004) 123 Cal.App.4th 1057, 1066-1067 (Burnett); see Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 629 (Rossmoor) [“Passive negligence is found in mere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty imposed by law.”].) The question whether an exculpatory clause covers a given case “ ‘ “turns primarily on cont

2020More to the point, as the trial court observed, failure to discover a dangerous condition “is what the [exculpatory] provision purports to specifically cover.” In sum, this is a case where plaintiff alleges ordinary, passive negligence—“the failure to discover a dangerous condition or to perform a duty imposed by law.” (Rossmoor, supra, 13 Cal.3d at p. 629 ; Frittelli, supra, 202 Cal.App.4th at p. 48 .) The exculpatory clause shields the lessor from liability for ordinary negligence.

2011(CAZA Drilling, supra, 142 Cal.App.4th at pp. 467-468; Burnett, supra, 123 Cal.App.4th at pp. 1065-1066.) Even when such exculpatory clauses have no impact upon the public interest, they are “ ‘strictly construed against the person relying upon them.’ ” (Id. at p. 1066, quoting Basin Oil Co. v. Baash-Ross Tool Co. (1954) 125 Cal.App.2d 578, 594 [ 271 P.2d 122 ].) “Whether an exculpatory clause ‘covers a given case turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control.

2011(CAZA Drilling, supra, 142 Cal.App.4th at pp. 467-468; Burnett, supra, 123 Cal.App.4th at pp. 1065-1066.) Even when such exculpatory clauses have no impact upon the public interest, they are “ ‘strictly construed against the person relying upon them.’ ” (Id. at p. 1066, quoting Basin Oil Co. v. Baash-Ross Tool Co. (1954) 125 Cal.App.2d 578, 594 [ 271 P.2d 122 ].) “Whether an exculpatory clause ‘covers a given case turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control.

2004(Butt v. Bertola, supra, 110 Cal.App.2d 128, 138-140 ; see also Barkett v. Brucato (1953) 122 Cal.App.2d 264, 278-279 [ 264 P.2d 978 ].) The scope of the exculpatory clause is not affected by paragraph 8.4 of the lease, which required appellants to maintain insurance coverage on their personal property.

2004(Butt v. Bertola, supra, 110 Cal.App.2d 128, 138-140 ; see also Barkett v. Brucato (1953) 122 Cal.App.2d 264, 278-279 [ 264 P.2d 978 ].) The scope of the exculpatory clause is not affected by paragraph 8.4 of the lease, which required appellants to maintain insurance coverage on their personal property.

2020Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 94 , involved an exculpatory clause in the conditions for admission to a charitable research hospital—not a commercial lease.

2013See Diaz v. United California Bank (1977) 71 Cal.App.3d 161, 171 [(Diaz)]; Akin v. Business Title Corp. (1968) 264 Cal.App.2d 153, 157 [(Akin)]." In Akin, the court applied Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 (Tunkl), and concluded, on public policy grounds, that "that the exculpatory clause before us cannot relieve the escrow company from liability." (Akin, supra, 264 Cal.App.2d at p. 159 ; see also Diaz, supra 71 Cal.App.3d at p. 171 [citing Akin and Tunkl and stating, "Where the public interest is affected the exculpatory clause will be held invalid"].) We need

2015Although the [trial] court does not have to reach this issue here, it does not appear the hold harmless clause would insulate [Stewart Title] from liability. [Citations.]” The trial court was specifically relying on public policy grounds, which establish that “[w]here the public interest is affected the exculpatory clause will be held invalid.” (Diaz v. United California Bank (1977) 71 Cal.App.3d 161, 171 [ 139 Cal.Rptr. 314 ]; see Akin v. Business Title Corp. (1968) 264 Cal.App.2d 153, 157-159 [ 70 Cal.Rptr. 287 ].) For purposes of analyzing the current attorney fees entitlement questions, we

2015Although the [trial] court does not have to reach this issue here, it does not appear the hold harmless clause would insulate [Stewart Title] from liability. [Citations.]” The trial court was specifically relying on public policy grounds, which establish that “[w]here the public interest is affected the exculpatory clause will be held invalid.” (Diaz v. United California Bank (1977) 71 Cal.App.3d 161, 171 [ 139 Cal.Rptr. 314 ]; see Akin v. Business Title Corp. (1968) 264 Cal.App.2d 153, 157-159 [ 70 Cal.Rptr. 287 ].) For purposes of analyzing the current attorney fees entitlement questions, we

1989And discussion was of the nature as to providing—them providing insurance as opposed to us providing insurance and having to charge them for the same insurance and having to put an overlay on top of it.” 14 It has also been noted: “The relative bargaining strengths of the parties does not come into play absent a compelling public interest in the transaction.” (Okura v. United States Cycling Federation, supra, 186 Cal.App.3d 1462, 1468 .) 15 See also Delta Air Lines, Inc. v. Douglas Aircraft Corp., supra, 238 Cal.App.2d 95 , also involving the sale of an allegedly defective aircraft and an atte

1989However, Douglas’s assertion, that Continental’s claim for negligent misrepresentation was barred by the exculpatory clause of the contract, is bolstered by the erroneous holding of Tokio Marine & Fire Ins. v. McDonnell Douglas Corp. (2d Cir. 1980) 617 F.2d 936 , in which the federal court, construing an almost identical exculpatory clause, declared that “[w]here there has been no violation of law, negligent misrepresentations in a commercial transaction such as that involved herein do not fall within the provisions of § 1668.” (Id. at p. 940.) The cases on which the Tokio Marine court relied

2015Although the [trial] court does not have to reach this issue here, it does not appear the hold harmless clause would insulate [Stewart Title] from liability. [Citations.]” The trial court was specifically relying on public policy grounds, which establish that “[w]here the public interest is affected the exculpatory clause will be held invalid.” (Diaz v. United California Bank (1977) 71 Cal.App.3d 161, 171 [ 139 Cal.Rptr. 314 ]; see Akin v. Business Title Corp. (1968) 264 Cal.App.2d 153, 157-159 [ 70 Cal.Rptr. 287 ].) For purposes of analyzing the current attorney fees entitlement questions, we

2015Although the [trial] court does not have to reach this issue here, it does not appear the hold harmless clause would insulate [Stewart Title] from liability. [Citations.]” The trial court was specifically relying on public policy grounds, which establish that “[w]here the public interest is affected the exculpatory clause will be held invalid.” (Diaz v. United California Bank (1977) 71 Cal.App.3d 161, 171 [ 139 Cal.Rptr. 314 ]; see Akin v. Business Title Corp. (1968) 264 Cal.App.2d 153, 157-159 [ 70 Cal.Rptr. 287 ].) For purposes of analyzing the current attorney fees entitlement questions, we

2020Butt v. Bertola (1952) 110 Cal.App.2d 128 involved misconduct by a commercial lessor that was “at the very least, active or affirmative negligence, not mere ordinary negligence.” (Id. at p. 138 [“misconduct in knowingly maintaining defective sewerage facilities and in taking patently inadequate measures for the repair of those facilities, with knowledge of the injuries to plaintiff’s property which would ensue”].) Burnett, supra, 123 Cal.App.4th at pages 1067-1068, involved a complaint that the lessor “was actively negligent in refusing to remediate the 8 problems caused by the excessive moist

1985(Tunkl v. Regents of University of California (1963) 60 *939 Cal.2d 92, 95 [ 32 Cal.Rptr. 33 , 383 P.2d 441 , 6 A.L.R.3d 693 ].) Although the California Supreme Court has recognized “[n]o definition of the concept of public interest can be contained within the four corners of a formula” (id., at p. 98), the court has reviewed a number of factors that should be considered in identifying the kind of agreement in which an exculpatory clause is invalid as contrary to public policy: ‘“[1] It [the agreement] concerns a business of a type generally thought suitable for public regulation. [2] The part

2016(Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1485 .) When an exculpatory clause expressly releases a defendant from all liability, a plaintiff need not have "a specific knowledge of the particular risk that ultimately caused the injury." (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1357 (Benedek).) However, the waiver is only valid as to acts of negligence that are reasonably related to the object or purpose for which the release is given.

2013However, “[w]hen a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357 .) “While it is true that the express terms of any release agreement must be applicable to the particular misconduct of the defendant [citation], that does not mean that every possible specific act of negligence of the defendant must be spelled out in the agreement or even discussed by the parties.” (Madison v. Superior Court (

2020An exculpatory clause that does not specifically mention negligence “would ordinarily be construed as shielding [the lessor] from liability ‘only for passive negligence, not for active negligence.’ ” (Burnett v. Chimney Sweep, LLC (2004) 123 Cal.App.4th 1057, 1066-1067 (Burnett); see Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 629 (Rossmoor) [“Passive negligence is found in mere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty imposed by law.”].) The question whether an exculpatory clause covers a given case “ ‘ “turns primarily on cont

2020Butt v. Bertola (1952) 110 Cal.App.2d 128 involved misconduct by a commercial lessor that was “at the very least, active or affirmative negligence, not mere ordinary negligence.” (Id. at p. 138 [“misconduct in knowingly maintaining defective sewerage facilities and in taking patently inadequate measures for the repair of those facilities, with knowledge of the injuries to plaintiff’s property which would ensue”].) Burnett, supra, 123 Cal.App.4th at pages 1067-1068, involved a complaint that the lessor “was actively negligent in refusing to remediate the 8 problems caused by the excessive moist

2006It is true that “ ‘[f]or an agreement to be construed as precluding liability for “active” or “affirmative” negligence, there must be express and unequivocal language in the agreement which precludes such liability’ ” and that “ ‘[a]n agreement which seeks to limit liability generally without specifically mentioning negligence is construed to shield a party only for passive negligence, not for active negligence.’ ” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1066 [ 20 Cal.Rptr.3d 562 ], quoting Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 932-933 [

2006It is true that “ ‘[f]or an agreement to be construed as precluding liability for “active” or “affirmative” negligence, there must be express and unequivocal language in the agreement which precludes such liability’ ” and that “ ‘[a]n agreement which seeks to limit liability generally without specifically mentioning negligence is construed to shield a party only for passive negligence, not for active negligence.’ ” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1066 [ 20 Cal.Rptr.3d 562 ], quoting Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 932-933 [

1997Doyle, supra, 426 U.S. 610 , established that due process forbids the use of a defendant’s postarrest silence to impeach an exculpatory defense proffered at trial, inasmuch as the Miranda warnings required to be administered after arrest (see Miranda v. Arizona (1966) 384 U.S. 436, 467-473 [ 86 S.Ct. 1602, 1624-1627 , 16 L.Ed.2d 694 , 10 A.L.R.3d 974 ]) carry an implicit assurance that silence will not be used against the defendant and render such silence “insolubly ambiguous” ( Doyle, supra, 426 U.S. at p. 617 [ 96 S.Ct. at p. 2244 ]).

1997Doyle, supra, 426 U.S. 610 , established that due process forbids the use of a defendant’s postarrest silence to impeach an exculpatory defense proffered at trial, inasmuch as the Miranda warnings required to be administered after arrest (see Miranda v. Arizona (1966) 384 U.S. 436, 467-473 [ 86 S.Ct. 1602, 1624-1627 , 16 L.Ed.2d 694 , 10 A.L.R.3d 974 ]) carry an implicit assurance that silence will not be used against the defendant and render such silence “insolubly ambiguous” ( Doyle, supra, 426 U.S. at p. 617 [ 96 S.Ct. at p. 2244 ]).

1997Doyle, supra, 426 U.S. 610 , established that due process forbids the use of a defendant’s postarrest silence to impeach an exculpatory defense proffered at trial, inasmuch as the Miranda warnings required to be administered after arrest (see Miranda v. Arizona (1966) 384 U.S. 436, 467-473 [ 86 S.Ct. 1602, 1624-1627 , 16 L.Ed.2d 694 , 10 A.L.R.3d 974 ]) carry an implicit assurance that silence will not be used against the defendant and render such silence “insolubly ambiguous” ( Doyle, supra, 426 U.S. at p. 617 [ 96 S.Ct. at p. 2244 ]).

1997Doyle, supra, 426 U.S. 610 , established that due process forbids the use of a defendant’s postarrest silence to impeach an exculpatory defense proffered at trial, inasmuch as the Miranda warnings required to be administered after arrest (see Miranda v. Arizona (1966) 384 U.S. 436, 467-473 [ 86 S.Ct. 1602, 1624-1627 , 16 L.Ed.2d 694 , 10 A.L.R.3d 974 ]) carry an implicit assurance that silence will not be used against the defendant and render such silence “insolubly ambiguous” ( Doyle, supra, 426 U.S. at p. 617 [ 96 S.Ct. at p. 2244 ]).

1983(Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 519-520 [ 105 Cal.Rptr. 904 ] and the cases cited therein; italics added.) In Sprout v. Cuddy (1955) 131 Cal.App.2d 85, 95 [ 280 P.2d 158 ], the court of appeal reached a result rejecting the purported effect of an exculpatory clause as to a rental agreement for a defective walker which provided that the licensor “. . . will in no way be responsible for damages resulting from the use thereof.” (Id., at p. 93.) The Sprout court said at page 95: “Except where discountenanced by public policy or some statutory inhibition, a part

1983(Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 519-520 [ 105 Cal.Rptr. 904 ] and the cases cited therein; italics added.) In Sprout v. Cuddy (1955) 131 Cal.App.2d 85, 95 [ 280 P.2d 158 ], the court of appeal reached a result rejecting the purported effect of an exculpatory clause as to a rental agreement for a defective walker which provided that the licensor “. . . will in no way be responsible for damages resulting from the use thereof.” (Id., at p. 93.) The Sprout court said at page 95: “Except where discountenanced by public policy or some statutory inhibition, a part

2014Rather, Coldwell Banker sought fees arising from claims brought against it as a result of the Tomjanoviches’ own wrongdoing by failing to disclose construction defects in their home known only to them and not known by Coldwell Banker, which ultimately caused Coldwell Banker to suffer significant attorney fees.2 The Tomjanoviches also cite a number of decisions concerning an indemnitor’s attempt to recover attorney fees against an indemnitee based on the reciprocity principle 2 The Tomjanoviches also rely on Queen Villas Homeowners Assn. v. TCB Property Management (2007) 149 Cal.App.4th 1 (Quee

2013(Queen Villas, at p. 7, quoting Rooz at p. 586.) 8 The Rooz court enforced the indemnity provision as an exculpatory clause because “the ‘commercial reality of the accommodation recording’ showed that the parties intended for the indemnity clause to release the defendant title company.” (Queen Villas, supra, 149 Cal.App.4th at p. 7 , quoting Rooz, supra, 55 Cal.App.4th at p. 586 , original italics.) Specifically, the indemnity provision’s language “‘made it clear’” the recording was a “‘“favor”’” performed without charge and the title company agreed to do so “‘only’” because the plaintiff agre

2006(Health Net, supra, 113 Cal.App.4th at p. 235 .) 5 We conclude that the exculpatory clause in the membership agreement is invalid under section 1668 as to appellant’s second cause of action for negligence per se.

2006On review, that decision was reversed because “section 1668 prohibits the enforcement of any contractual clause that seeks to exempt a party from liability for violations of statutory and regulatory law, regardless of whether the public interest is affected.” (Health Net, supra, at p. 235.) The holding in Health Net does not apply to this case because, as the court explained, the exculpatory clause at issue in that case “prohibited] ... the recovery of any damages at all for DHS’s statutory or regulatory violations” and “exempted] DHS completely from responsibility for completed wrongs.” (Heal

2020Butt v. Bertola (1952) 110 Cal.App.2d 128 involved misconduct by a commercial lessor that was “at the very least, active or affirmative negligence, not mere ordinary negligence.” (Id. at p. 138 [“misconduct in knowingly maintaining defective sewerage facilities and in taking patently inadequate measures for the repair of those facilities, with knowledge of the injuries to plaintiff’s property which would ensue”].) Burnett, supra, 123 Cal.App.4th at pages 1067-1068, involved a complaint that the lessor “was actively negligent in refusing to remediate the 8 problems caused by the excessive moist

2004(Butt v. Bertola, supra, 110 Cal.App.2d 128, 138-140 ; see also Barkett v. Brucato (1953) 122 Cal.App.2d 264, 278-279 [ 264 P.2d 978 ].) The scope of the exculpatory clause is not affected by paragraph 8.4 of the lease, which required appellants to maintain insurance coverage on their personal property.

2013However, “[w]hen a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357 .) “While it is true that the express terms of any release agreement must be applicable to the particular misconduct of the defendant [citation], that does not mean that every possible specific act of negligence of the defendant must be spelled out in the agreement or even discussed by the parties.” (Madison v. Superior Court (

2013However, “[w]hen a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357 .) “While it is true that the express terms of any release agreement must be applicable to the particular misconduct of the defendant [citation], that does not mean that every possible specific act of negligence of the defendant must be spelled out in the agreement or even discussed by the parties.” (Madison v. Superior Court (

1989However, Douglas’s assertion, that Continental’s claim for negligent misrepresentation was barred by the exculpatory clause of the contract, is bolstered by the erroneous holding of Tokio Marine & Fire Ins. v. McDonnell Douglas Corp. (2d Cir. 1980) 617 F.2d 936 , in which the federal court, construing an almost identical exculpatory clause, declared that “[w]here there has been no violation of law, negligent misrepresentations in a commercial transaction such as that involved herein do not fall within the provisions of § 1668.” (Id. at p. 940.) The cases on which the Tokio Marine court relied

1989However, Douglas’s assertion, that Continental’s claim for negligent misrepresentation was barred by the exculpatory clause of the contract, is bolstered by the erroneous holding of Tokio Marine & Fire Ins. v. McDonnell Douglas Corp. (2d Cir. 1980) 617 F.2d 936 , in which the federal court, construing an almost identical exculpatory clause, declared that “[w]here there has been no violation of law, negligent misrepresentations in a commercial transaction such as that involved herein do not fall within the provisions of § 1668.” (Id. at p. 940.) The cases on which the Tokio Marine court relied

1997Co. v. McDonnell Douglas Corp. (1989) 214 Cal.App.3d 1, 27-28 [ 262 Cal.Rptr. 716 ].) Moreover, a court will invalidate an exculpatory clause only where “all or most of the[] [Tunkl] circumstances exist.” (Belshaw v. Feinstein (1968) 258 Cal.App.2d 711, 726 [ 65 Cal.Rptr. 788 ].) In this case, we conclude only one of the Tunkl factors applies to the accommodation recording that is the subject of this lawsuit.

1997Co. v. McDonnell Douglas Corp. (1989) 214 Cal.App.3d 1, 27-28 [ 262 Cal.Rptr. 716 ].) Moreover, a court will invalidate an exculpatory clause only where “all or most of the[] [Tunkl] circumstances exist.” (Belshaw v. Feinstein (1968) 258 Cal.App.2d 711, 726 [ 65 Cal.Rptr. 788 ].) In this case, we conclude only one of the Tunkl factors applies to the accommodation recording that is the subject of this lawsuit.

2016(Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1485 .) When an exculpatory clause expressly releases a defendant from all liability, a plaintiff need not have "a specific knowledge of the particular risk that ultimately caused the injury." (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1357 (Benedek).) However, the waiver is only valid as to acts of negligence that are reasonably related to the object or purpose for which the release is given.

2011(See Huverserian v. Catalina Scuba Luv, Inc. (2010) 184 Cal.App.4th 1462 [ 110 Cal.Rptr.3d 112 ]; see also Cohen v. Five Brooks Stables (2008) 159 Cal.App.4th 1476 [ 72 Cal.Rptr.3d 471 ].) Construing an exculpatory clause strictly against the party who prepared it involves different rules from the question of whether an exculpatory clause, as written and construed, is legally enforceable.

2013“A clause which contains the words ‘indemnify’ and ‘hold harmless’ is an indemnity clause which generally obligates the indemnitor to reimburse the indemnitee for any damages the indemnitee becomes obligated to pay third persons. [Citation.] Indemnification agreements ordinarily relate to third party claims.” (Myers Building Industries, Ltd. v. Interface Technology, Inc., supra, 13 Cal.App.4th at p. 969 .) “An indemnity agreement may provide for indemnification against an indemnitee’s own negligence, but such an agreement must be clear and explicit and is strictly construed against the indemni

2013(Queen Villas, at p. 7, quoting Rooz at p. 586.) 8 The Rooz court enforced the indemnity provision as an exculpatory clause because “the ‘commercial reality of the accommodation recording’ showed that the parties intended for the indemnity clause to release the defendant title company.” (Queen Villas, supra, 149 Cal.App.4th at p. 7 , quoting Rooz, supra, 55 Cal.App.4th at p. 586 , original italics.) Specifically, the indemnity provision’s language “‘made it clear’” the recording was a “‘“favor”’” performed without charge and the title company agreed to do so “‘only’” because the plaintiff agre

2012(Walnut Producers, supra, 187 Cal.App.4th at p. 649 .) Furthermore, Discover Bank only applied when a plaintiff filed a lawsuit alleging a class action claim.

2011(Cf. Walnut Producers of California v. Diamond Foods, Inc. (2010) 187 Cal.App.4th 634, 649-650 [ 14 Cal.Rptr.3d 449 ] [to be deemed unconscionable, class action waiver must act as “an exculpatory clause or unduly hinder[] plaintiffs from pursuing a legal remedy”].) Because Chin advances no other colorable unconscionability claim, we conclude that, even if the delegation clause of the arbitration provision, by itself, were unenforceable, the trial court nevertheless erred in refusing to compel arbitration.

2011The court held the contract to be contrary to public policy under the standards set forth in that opinion. ( Tunkl, supra, 60 Cal.2d at pp. 97-98, 102, 104.) As we have noted, in Henrioulle , the Supreme Court went on to determine that the offering and obtaining of residential rental property similarly impacted a strong public interest so that exculpatory clauses in such contracts were invalid. ( Henrioulle, supra, 20 Cal.3d at pp. 520-521.) Later cases have applied these authorities to invalidate exculpatory clauses in a variety of contexts found to implicate “public policy.” (See Neubauer v.

2011The court held the contract to be contrary to public policy under the standards set forth in that opinion. ( Tunkl, supra, 60 Cal.2d at pp. 97-98, 102, 104.) As we have noted, in Henrioulle , the Supreme Court went on to determine that the offering and obtaining of residential rental property similarly impacted a strong public interest so that exculpatory clauses in such contracts were invalid. ( Henrioulle, supra, 20 Cal.3d at pp. 520-521.) Later cases have applied these authorities to invalidate exculpatory clauses in a variety of contexts found to implicate “public policy.” (See Neubauer v.