(3) Existence of a confidential or fiduciary relationship depends on the circumstances of each case and is a question of fact for the fact trier. ( Pryor v. Bistline, 215 Cal.App.2d 437, 446 [ 30 Cal.Rptr. 376]; Bleakley v. Carnes, 209 Cal.App.2d 577, 587-588 [ 26 Cal.Rptr. 115].) (4) A confidential relationship exists when one party gains the confidence of the other and purports to act or advise with the other's interests in mind; it may exist although there is no fiduciary relationship; it is particularly likely to exist when there is a family relationship or one of friendship.
It seems to us unthinkable to say that the TraveLodge organization could procure an amendment of the lease reducing rentals because of the breach by the lessors of the provisions of the lease and could also renew at a later date a contention that additional damages should be awarded. Modifications of contracts under executed oral agreements are frequently made in the business world, as examples, we cite Julian v. Gold, 214 Cal. 74 [ 3 P.2d 1009]; Craig v. Reed, 98 Cal.App.2d 695 [ 220 P.2d 771]; and Bleakley v. Carnes, 209 Cal.App.2d 577 [ 26 Cal.Rptr. 115] (see Civ. Code, § 1698). We cannot see our way clear to set aside the conclusion of the trial court to the effect that the parties themselves settled their differences as to damages by the amendment of the provision of the original lease as to reduced rentals as developed by the evidence.