I respectfully dissent.
I am sympathetic to petitioner’s predicament also but it is entirely of its own doing.1 Petitioner failed to respond to the original request for admissions within the extended statutory period. Petitioner also failed to respond to the “First set; Revised” request for admissions within the statutory period. Petitioner moved for relief under section 473 and did not set forth proper grounds for relief. Petitioner withdrew the “First set; Revised” request for admissions from consideration by the trial court. In its argument to the trial court petitioner never even mentioned the term “waiver” and just barely preserved the issue for consideration by this court. Petitioner now asks this court to rescue it from the consequences of its omissions.
I am not willing to hold as a matter of law that by revising 14 of an original 155 requested admissions, a party intends to waive all 155 admissions plus 59 admissions of the genuineness of documents. Waiver is an intentional relinquishment of rights. Kreuger’s actions do not constitute a waiver, they are merely some evidence of a possible intent to waive his rights.2 How reasonable is it to assume as a matter of law that Kreuger *239intended to give up admissions on the original 155 matters plus 59 admissions of the genuineness of documents merely to attempt to get admissions on the 14 revised matters? A comparison of the original admissions with the 14 “First Set; Revised” admissions shows that none of the changes amounted to more than a superficial rewording which was not substantial or legally significant. Even if this could be called a waiver, it would be to the 14 matters only.
Nevertheless, the trial court did not find that Kreuger intended a waiver of the original request for admissions.3 That may have been his intention, no matter how incredible that would be, but the trial court did not think so and the court was not required as a matter of law to find such an intent.
As to the “First set; Revised” request for admissions, at petitioner’s request that was not considered by the trial court. Ordering the trial court to strike the revised request as defective would not be appropriate in this proceeding even if one could accept petitioner’s implication that it did not understand that section 2033 sanctions were applicable.
A petition for a rehearing was denied October 28, 1985, pursuant to rule 27(e), California Rules of Court. The petition of real party in interest for review by the Supreme Court was denied January 16, 1986.
As stated in Graham v. Graham (1959) 174 Cal.App.2d 678, 684 [345 P.2d 316], “ ‘ “Waiver” has been repeatedly defined as “the intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right, and may result from an express agreement or be inferred from circumstances indicating an intent to waive.” ’ ” In other words, the party’s conduct may warrant an inference of his actual intent. The conduct is not the fact which establishes the waiver; the conduct is evidence of the fact of intent, because “[w]aiver always rests upon intent.” (Roesch v. De Mota (1944) 24 Cal.2d 563, 572 [150 P.2d 422]; Kay v. Kay (1961) 188 Cal.App.2d 214, 218 [10 Cal.Rptr. 196].)
We must presume the California Supreme Court had these principles in mind when it stated, in Crest Catering Co. v. Superior Court (1965) 62 Cal.2d 274, 278 [42 Cal.Rptr. 110, 398 P.2d 150], (cited p. 233, ante), that “[a] waiver may occur (1) by an intentional relinquishment or (2) as ‘the result of an act which, according to its natural import, is so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.’ ” The reference to “inducing] a reasonable belief” must mean a reasonable inference by the trier of fact as to the party’s intent, not the other party. (Graham v. Graham, supra, 174 Cal.App.2d at p. 684.)
For the record, it is noted that petitioner in his argument to the court misstated the evidence in claiming that Kreuger waited five months to give notice that the requested admissions were claimed admitted. Petitioner’s response to the request for admissions after extensions of time was due on June 11. Kreuger served notice that they were deemed admitted on September 7. The actual time period was approximately 2 months and 26 days.