Implied in fact modifications have been consistently recognized under California law in that the parties’ modification setting aside the written provisions will be implied wherein the subsequent conduct of the parties is inconsistent with and clearly contrary to provisions of the written agreement. See Diamond Woodworks, INc. v. Argonaut Ins. Co., (2003) 109 Cal. App. 4th 1020, 1038 (overruled on other grounds); see also Garrison v. Edward Brown & Sons, (1944) 25 Cal. 2d 473, 479 (“Before a contract modifying a written contract can be implied, the conduct of the parties according to the findings of the trial court must be inconsistent with the written contract so as to warrant the conclusion that the parties intended to modify the written contract.”); see also Wagner v. Glendale Adventist Medical Center, (1989) 216 Cal. App.3d 1379, 1388 (“When one party has, through oral representations and conduct or custom, subsequently behaved in a manner antithetical to one or more terms of an express written contract, he or she has induced the other party to rely on the representations and conduct or custom. In that circumstance, it would be equally inequitable to deny the relying party the benefit of the other party’s apparent modification of the written contract.”) Moreover, The existence of the implied modification is a question of fact to be proven by a preponderance of the evidence. See Keeble v. Brown (1954) 123 Cal. App. 2d 126, 132 (“Whether a writing has been modified by an executed oral agreement is a question of fact.”)
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