Does plaintiff have to prove that they have been negligent in moving the case forward?

Here, of course, plaintiff was granted an order shortening time despite the requirements of Code of Civil Procedure section 1005 ⁷, and the motion to specially set was heard on April 3, 1984, ten days before the [186 Cal.App.3d 71] expiration of the five-year statute. Pursuant to Code of Civil Procedure section 594, subdivision (a), the trial court did not have jurisdiction to set a trial date any earlier than April 18, 1984, some five days after the statutory period had expired. Given plaintiff's neglect in moving the case forward and the lateness of his motion to specially set, the court was acting well within its discretion when it scheduled trial to commence on June 5, 1984.

Citing Campanella v. Takaoka (1984) 160 Cal.App.3d 504, 206 Cal.Rptr. 745, plaintiff nonetheless argues that the trial

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[186 Cal.App.3d 72] The Court went on to conclude as follows: "A discretionary standard for determining motions under section 36(d), even on the eve of the five-year deadline, is consistent with the legislative intent to promote diligent and orderly prosecution by requiring plaintiffs to make some showing of excusable delay. We are concerned that court congestion remains an unfortunate reality, causing inevitable delay, often of several years, regardless of a party's diligence. As we emphasized in Weeks [Weeks v. Roberts (1968) 68 Cal.2d 802, 69 Cal.Rptr. 305, 442 P.2d 361], it is monstrous to deny a forum to a plaintiff simply because the procedure of the courts has been too slow. (68 Cal.2d at p. 807, 69 Cal.Rptr. 305, 442 P.2d 361.) On the other hand, if we were to require mandatory early trial setting without regard to a plaintiff's diligence we would in effect reward unreasonable procrastination to the prejudice of defendants, to diligent litigants who have had trials set and as a result will lose their priority, and to our already overburdened court calendars." (Id., at p. 349.)