I concurin the result. While I can understand the concern expressed by the dissent, I see the facts differently and believe there are compelling reasons to reverse. First, waiver was clearly and in fact the only issue argued to the trial court at the hearing.1 The facts support the argument. Second, because the issue is so close the court must not render a decision that would preclude a trial on the merits when it can prevent it under its discretionary powers. “It is the policy of the law to favor, wherever possible, a hearing on the merits, and appellate courts are much more *238disposed to affirm an order where the result is to compel a trial upon the merits than they are when the judgment by default is allowed to stand and it appears that a substantial defense could be made.” (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854-855 [48 Cal.Rptr. 620, 409 P.2d 700].) Although Weitz was concerned with a default judgment the policy considerations apply with equal force to issues raised by our present case. Here if the admissions are deemed admitted the probable result is a default decision surpassing $1.3 million. I am satisfied Krueger waived the right to these extreme sanctions.
We print the final portion of petitioner’s argument. “But more importantly the argument that counsel does not address is the fact that he himself has acted in the past in such a way as to indicate that he accepts these responses as timely and proper. He did not respond to these by saying, ‘I’m sorry. These are all admitted. Go away.’ Rather, he addressed to the substances of the responses that were served upon him.
“He objected to the substance of those answers that were meet and confer occasions. There was a motion made and subsequently taken off calendar to compel further responses to these requests for admissions. There was the preparation and service of the revised set of requests. Everything indicated that counsel objected to the substance of the answers but not to their procedural propriety. And it was only after five months that counsel took his motion for further answers off calendar and gave notice that he deemed everything admitted.”
We note that petitioner did not represent itself but was represented by other counsel at all stages of the discovery proceedings.