I respectfully dissent. Unlike the majority, I believe the trial court properly denied the motions of the Oakland-Alameda County Coliseum (OACC) for judgment notwithstanding the verdict (JNOV) on the negligent misrepresentation (fraud) count. The trial court properly submitted to the jury, as a question of fact, the issue of whether the Oakland Raiders (Raiders) had waived its claim of fraud, and correctly instructed on this issue as one of intentional relinquishment. And there is substantial evidence to support the jury’s finding that the Raiders did not waive this claim.
More generally, I believe that the majority’s approach to the doctrine of implied waiver—by basing that doctrine on estoppel while downplaying intent—is misguided. That approach muddles the law in this area. And that muddle will now make it easier to find that a party has waived a fraud claim as a matter of law, thereby harming many who may actually have been defrauded. The majority concludes that the doctrine of implied waiver as to a fraud claim is “better understood as an application of the doctrine of equitable estoppel than ‘waiver’ in the traditional sense, which generally rests on a party’s intent.” (Maj. opn., ante, at p. 1189, italics added.) On the contrary, the doctrine of implied waiver as to a fraud claim is best understood as an application of the doctrine of implied waiver, which focuses on intent.
I must begin at the beginning. “ ‘ “[Wjaiver is the intentional relinquishment of a known right after knowledge of the facts.” ’ ” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31 [44 Cal.Rptr.2d 370, 900 P.2d 619] (Waller).) “ ‘ “ ‘Waiver always rests upon intent.’ ” ’ ” (Ibid.) “[A] waiver may be either express, based on the words of the waiving party, or implied, based on conduct indicating an intent to relinquish the right.” (Ibid., italics *1196added.) Thus, “ ‘California courts will find waiver when a party [expressly] relinquishes a right or when that party’s acts [i.e., conduct] are so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.’ ” (Id. at pp. 33-34.) Whether a party waives a right by expression or by conduct, that party must always intend to waive the right because waiver, express or implied, always rests upon intent. Intent may be implied through conduct. (Id. at p. 31.)
These waiver rules, beginning with Schmidt v. Mesmer (1897) 116 Cal. 267 [48 P. 54] (Schmidt), have been applied in the context of a contractual party who may have been fraudulently induced to enter into a contract but who, through subsequent expression or conduct, has been found to have waived any claim of fraud through intentional relinquishment. Citing Schmidt, as well as the other venerable decisions cited in the majority opinion—Burne v. Lee (1909) 156 Cal. 221 [104 P. 438] and Ball v. Warner (1926) 80 Cal.App. 427 [251 P. 929]—this court, nearly 60 years ago, in Schied v. Bodinson Mfg. Co. (1947) 79 Cal.App.2d 134 [179 P.2d 380] (Schied), accurately encapsulated the Schmidt waiver principle as follows: “The authorities are uniform in holding that a party to an executory contract, who, with full knowledge of the facts constituting the fraud complained of, subsequently, with intention to do so, affirms the contract and recognizes it as valid, either by his written agreement or by acts and conduct, and accepts substantial payments, property or the performance of work or labor not required by the original contract, thereby waives his right to damages on account of the fraud.” (Schied, supra, at p. 142, italics added; accord, Storage Services v. Oosterbaan (1989) 214 Cal.App.3d 498, 512-513 [262 Cal.Rptr. 689]; see also Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 530 [154 Cal.Rptr. 874] [“ ‘A careful review of some of the more recent cases’ ”—quoting from a 1958 decision— indicates there can be no waiver of a right to sue for fraud in the absence of an intentional relinquishment of a known right, and a request for modification of contractual provisions and even the acceptance thereof are simply factors to consider in determining whether the requisite intent of a contractual party to waive a fraud claim was express, or whether it can be implied or inferred from the surrounding circumstances].) (See maj. opn., ante, at p. 1184.)
Schied also noted, correctly, that determining the issue of fraud waiver ordinarily presents a question of fact, a point the majority acknowledges as a “truism.” (Schied, supra, 79 Cal.App.2d at pp. 143-144; see maj. opn., ante, at p. 1191.)
In line with Schied and the waiver rules of intentional relinquishment quoted above, the trial court here properly instructed the jury on the issue of whether the Raiders had intentionally waived its claim for fraud—by expression or by conduct—by instructing as follows: “The term ‘waiver’ *1197refers to an intentional relinquishment of a known right. You are instructed that a party to a contract, who, with full knowledge of the facts constituting the fraud complained of, subsequently, with intention to do so, affirms the contract and recognizes it as valid, either by his written agreement or by acts and conduct, and accepts substantial benefits not required by [the] original contract, thereby waives his right to damages on account of the fraud. It is for you, the jury, to determine from all the facts and circumstances shown in the evidence whether [the Raiders] intended to waive its right to recover [fraud] damages from [OACC] by entering into the June 1, 1996[,] agreement [i.e., the June 1996 Supplement]. In order for there to have been such a waiver, it must be established that there was a material change in the agreement to the substantial benefit of the [Raiders], and that the [Raiders] at the time of such change had full knowledge of the facts constituting the fraud.”
Thus, the trial court correctly instructed the jury on express waiver (based on words) and implied waiver (based on conduct), recognizing that both types of waiver encompass intentional relinquishment. The trial court did not provide what would have been an improper instruction in light of the implied waiver rule: that no waiver could be found unless the Raiders subjectively intended to waive its right to sue for fraud; conduct would not suffice. (See Rubin v. Los Angeles Fed. Sav. & Loan Assn. (1984) 159 Cal.App.3d 292, 298 [205 Cal.Rptr. 455].)
As I shall explain, I also think the trial court properly submitted the waiver issue to the jury as a question of fact, and that substantial evidence supports the jury’s finding of no waiver. In special verdict No. 5, the jury answered “No” to the following question: “H[as] the Defendants [OACC] proved by clear and convincing evidence that the Raiders intended to and did waive [its] fraud claim . . . when the Raiders entered into the June 1, 1996[,] Supplement?” (See Waller, supra, 11 Cal.4th at p. 31 [the party claiming a waiver of a right has the burden of proving the waiver by clear and convincing evidence that does not leave the matter to speculation, and doubtful cases will be decided against waiver].) (See maj. opn., ante, at p. 1187, fn. 5.)
Acknowledging several decisions, the majority opinion correctly notes “the truism that the existence of waiver is ordinarily a question of fact.” (Maj. opn., ante, at p. 1191.) But the majority says the issue of waiver here may be determined as a matter of law because the undisputed facts lead to only one reasonable conclusion: “The facts surrounding the execution of the June 1996 Supplement satisfied all the elements of implied waiver, while the only evidence to the contrary—the Raiders’ undisclosed subjective intent to preserve [its] fraud claim—was entitled to no weight whatsoever” (maj. opn., ante, at p. 1191, italics omitted); “the Supplement’s reduction of the Raiders’ *1198interest rate on two long-term loans by itself saved the team $109 million in interest payments.” (Maj. opn., ante, at p. 1193, original italics.) I disagree for three reasons.
First, there was evidence that the person who drafted the June 1996 Supplement on behalf of East Bay Entities (i.e., OACC and others) surveyed her effort and concluded that “[ojverall, I believe the Supplement is economically favorable to the East Bay Entities . . . .” The majority correctly notes that the implied waiver rule’s application does not turn on some sort of comparative benefit analysis between the Raiders and OACC. (Maj. opn., ante, at p. 1193.) Nevertheless, a juror may have gleaned from this evidence that the June 1996 Supplement was simply an agreement sought by both OACC and the Raiders for their mutual benefit, rather than an agreement through which the Raiders, knowing of the fraud, affirmed the validity of the original contract and accepted substantial benefits not found therein, thereby demonstrating an intent to waive any fraud claim regarding the original contract.
Second, one of the Raiders’ theories of damages was that by contracting with OACC—pursuant to OACC’s fraudulent inducements of “sellouts”—the team lost approximately $544 million in past and future profits and $289 million in franchise value. (See BAJI No. 12.57 [“benefit of the bargain” measure of damages].) The $109 million the Raiders saved in long-term interest payments—via the June 1996 Supplement—pales in comparison to these sums. If a juror accepted this evidence, he or she may have concluded that the June 1996 Supplement was merely a way for the Raiders to cut its fraud losses rather than an agreement through which the Raiders, knowing of the fraud, affirmed the validity of the original contract and obtained substantial benefits not found therein, demonstrating an intent to waive any fraud claim as to the original contract. (See Smith v. Roach (1975) 53 Cal.App.3d 893 [126 Cal.Rptr. 29], as characterized in Storage Services v. Oosterbaan, supra, 214 Cal.App.3d at p. 512, fn. 7 [“The [contractually] defrauded plaintiffs in Smith v. Roach . . . were held not to have waived the defendants’ fraud just because they had attempted to mitigate their losses through a ‘new agreement’ with a third party”].)
And third, it bears repeating that we review here the denial of a motion for JNOV. The majority concludes that the motion should have been granted. As the majority opinion recognizes, a JNOV may be granted only if, “viewing the evidence in the light most favorable to the party securing the verdict [the Raiders], the evidence compels a verdict for the moving party [OACC] as a matter of law.” (Maj. opn., ante, at p. 1194, italics added.) Viewing the evidence above in the light most favorable to the Raiders, the evidence does not compel a verdict for OACC as a matter of law. I would uphold the trial *1199court’s denial of OACC’s motion for JNOV and consider the remaining pertinent issues in this appeal.
That brings me to my general concerns about the majority’s view of the implied waiver doctrine as applied to waiving a fraud claim.
Prior to the majority’s opinion, the Schmidt principle governing the waiver of a right to sue for fraud had been interpreted as requiring the intentional relinquishment of that right, a known right. This intentional relinquishment could be conveyed through words (express waiver) or through conduct (implied waiver), or both. (See, e.g., Schied, supra, 79 Cal.App.2d at p. 142; Clark Equipment Co. v. Wheat, supra, 92 Cal.App.3d at p. 530.) But intentional it had to be.
The majority’s new interpretation of the Schmidt waiver principle essentially substitutes estoppel for implied waiver, thereby downplaying intent by focusing solely on conduct. As the majority opinion notes, “[wjhile the question of waiver ordinarily turns on the intent of the party against whom it is asserted, estoppel focuses solely on the party’s conduct.” (Maj. opn., ante, at p. 1189, original italics.) This denigrates the pivotal criterion of intentional relinquishment of the right to sue for fraud.
Under the traditional view of the Schmidt waiver principle, the conduct that will constitute implied waiver of the right to sue for fraud must be so definitive that it is the functional equivalent of express waiver—i.e., a party’s conduct must indicate “an intent to relinquish the right” (Waller, supra, 11 Cal.4th at p. 31, italics added); the conduct must be “ ‘so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.’ ” (Id. at pp. 33-34, italics added.) With its focus on intentional relinquishment, this traditional view of waiver ensures that implied-waiver conduct meets these exacting standards. The same cannot be said for the concept of estoppel, which focuses solely on conduct absent this critical backdrop of intent. Consequently, the majority has muddled the law by substituting estoppel for implied waiver. And to think the majority started all this mischief simply because of an offhand comment in Bagdasarian v. Gragnon (1948) 31 Cal.2d 744, 751 [192 P.2d 935], that “ ‘[t]here is serious doubt whether even a granted request of a [subsequent] favor [between contracting parties], such as an extension of time, should be held to constitute a waiver [of the right to sue for fraud] in the absence of estoppel or the making of a new agreement supported by consideration ....’” (Maj. opn., ante, at p. 1188, italics added in maj. opn.)
With its traditional focus on intentional relinquishment, the issue of whether a party has waived its right to sue for fraud has generally been *1200considered a question for the fact finder, and with good reason. Determining whether a party has waived a fraud claim is a question a jury is particularly well suited to decide, after evaluating the evidence of the parties’ relationship. But the majority’s estoppel-based sole focus on the allegedly defrauded party’s conduct and whether that conduct may be deemed a waiver of the right to sue for fraud, pushes this issue toward the question of law side of the ledger, as the present case well illustrates. Furthermore, because waiving a legal right is serious business, the burden is on the party claiming such a waiver to prove it by the enhanced-proof standard of clear and convincing evidence so as not to leave the matter to speculation; doubtful cases are to be decided against waiver. (Waller, supra, 11 Cal.4th at p. 31.)
There may be all sorts of reasons why a defrauded party would try to cut its losses and seek at least half a loaf through a subsequent agreement, without giving up its right to be fully compensated for the fraud arising from the original agreement. But the majority’s view of implied waiver—with its estoppel focus on conduct rather than intent—may deem this conduct a waiver as a matter of law because the defrauded party has obtained a significant benefit. Using the majority’s approach, a wily defrauder could offer some significant benefit to the defrauded party in the hopes of destroying any chance the defrauded party may have of suing for fraud. True, the majority has emphasized, in its calculus, the allegedly defrauded party’s affirmation of the original agreement when making the subsequent agreement. But such affirmation would commonly occur where, as here, a subsequent supplemental agreement resolves some issues but not all. In that situation, the original agreement is still needed to govern the contractual aspects not governed by the half-a-loaf supplemental agreement. As this court noted in Schied, to intentionally relinquish a right to sue for fraud, the allegedly defrauded party, knowing of the fraud, must intend to affirm the original contract and recognize it as valid, and must obtain significant benefits outside the original agreement. (Schied, supra, 79 Cal.App.2d at p. 142.) Again, such fact-intensive issues are generally best left to the jury’s determination, which hears all the evidence of the parties’ contractual relationship, rather than to a court which deems it knows best as a matter of law before trial.
We must keep in mind that the issue here is the waiver of a right to sue for fraud. As the Schmidt court noted, “one actually guilty of fraud is not entitled to much consideration; but the real difficulty usually is to determine whether or not the alleged fraud actually existed, and the issue has generally to be determined upon conflicting testimony . . . .” (Schmidt, supra, 116 Cal. at p. 270.) I am perplexed as to why the majority feels the need to craft a waiver rule that benefits the alleged defrauder at the expense of the defrauded, and that tends to take the issue of whether a party has waived its right to sue for fraud from the forum best suited to determining that issue: the jurors who hear all the evidence, employing their life experiences and common sense.
*1201The majority’s estoppel-based approach to implied waiver muddles the law in this area. That muddle will now make it easier to find that a party has waived a fraud claim as a matter of law, thereby harming many who may actually have been defrauded.