I respectfully dissent from the majority’s conclusion the trial court abused its discretion in dismissing plaintiff’s two actions against the Bank of America.
The majority loses sight of the criteria previously utilized by this court when determining abuse of discretion by the trial court in granting a motion to dismiss, pursuant to Code of Civil Procedure section 583, subdivision (a).1
A brief factual background is necessary to explain why I refused, unlike the majority, to substitute my judgment for that of the trial court’s.
I
On October 29, 1979, plaintiff filed a complaint (San Bernardino County Super. Ct. No. 192927) naming Bank of America NT&SA and 27 other defendants. The principal defendants, Woodside Construction Co., Crestline Two, Crestline Four, Crestline Five and all the partners of these entities were in bankruptcy before this complaint was filed.2 These bankruptcies terminated on January 6,1983. Plaintiff sought “money due and owing” and foreclosure of two mechanics hens.3 Defendant bank agreed to accept service in *471August 1980. Subsequently, on October 29, 1982, after receiving a series of extensions, defendant bank filed its answer. As of August 24, 1984, the only defendants who had not been defaulted or dismissed were Michael and Madelyn Wagner and Anthony and Linda DiMaggio (all of whom had petitioned for bankruptcy in Feburary 1982), Greg Seda and Bank of America.4
Plaintiff filed a parallel complaint (San Bernardino County Super. Ct. No. 193374) on November 28,1979, again naming Bank of America and 50 other defendants.5 Bank of America’s answer is dated March 6,1980. As of August 29,1984, the only defendants who had not been defaulted or dismissed were Michael and Madelyn Wagner and Anthony and Linda DiMaggio (all of whom had petitioned for bankruptcy in February 1982), Arthur and Shirley Glassman (with whom settlement had been agreed and dismissal was entered shortly thereafter), Makco and its principals (with whom settlement had been reached after notice of appeal was filed), and Bank of America.
On August 24, 1984, approximately four years and ten months after the first action was filed and four years and nine months after the second action was filed, plaintiff brought an ex parte application in both proceedings for an order shortening time on a motion to sever certain defendants and a motion to specially set the case for trial. Plaintiff’s ex parte motions were denied.
On August 30, plaintiff filed a notice of motion to be heard on September 13, 1984, for an order severing certain defendants and specially setting the case for trial. Bank of America requested plaintiff consent to hear a motion to dismiss along with plaintiff’s motion to sever and specially set. Plaintiff refused to consent. Bank of America then advised plaintiff it would file a motion to dismiss and request the court on September 13 dismiss the action on the court’s own motion.6
The court denied the plaintiffs motions to specially set and, on its own motion, dismissed the actions under section 583, subdivision (a).7
Plaintiff appeals, contending the trial court abused its discretion by denying its motions to shorten time and specially set. Also, plaintiff asserts the trial court abused its discretion by dismissing the actions on its own motion.
*472II
Motions to specially set a case for trial and motions to dismiss pursuant to section 583, subdivision (a), invite inquiry into the same factors. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 560-561 [194 Cal.Rptr. 773, 669 P.2d 9].) “The similarity between the two motions is explained in Beswick v. Palo Verde Hospital Ass'n (1961) 188 Cal.App.2d 254, 260 [10 Cal.Rptr. 314]: ‘In passing upon the motion for an early and preferential setting, the court was not limited to a consideration of the single fact that the five-year period was about to expire but was required to view the total picture, including the dilatory action of the plaintiff, the condition of the court’s calendar, the rights of other litigants, and the prejudice to the defendant resulting from the delay. [Citations.] The action of the court on such a motion is tantamount to action upon a motion to dismiss for failure to prosecute within the two-year period prescribed by section 583 of the Code of Civil Procedure; in each instance the motion is addressed to its sound legal discretion; the motivating factors in the exercise of that discretion would be pertinent to both motions; and its decision “will be disturbed only in cases of manifest abuse.” ’ [Italics added.]” (Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d at p. 561. See also Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 346-347 [228 Cal.Rptr. 504, 721 P.2d 590].)
This court announced the applicable standard of appellate review in Lopez v. Larson (1979) 91 Cal.App.3d 383, and affirmed its position in Hoffman v. State of California (1985) 171 Cal. App.3d 1100 [217 Cal.Rptr. 867]. In Hoffman, we reiterated: “ ‘While it is true that an order granting a motion to dismiss for dilatory prosecution will be more closely scrutinized on review than one denying the motion [citations], nevertheless the trial court exercises a wide discretion in ruling on a motion to dismiss under Code of Civil Procedure section 583, subdivision (a) and its determination will be reversed only upon a showing of manifest abuse of discretion resulting in a miscarriage of justice. [Citations.] The discretion to be exercised is that of the trial court, not that of the appellate court. [Citations.] Discretion is abused only when the court exceeds the bounds of reason, all of the circumstances before it being considered. [Citations.]’ [11] ‘“... The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown ... a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.” [Citations.]’ [Citation.]” (Hoffman v. State of California, supra, 171 Cal.App.3d at pp. 1105-1106.) Further, as suggested by D’Hondt v. Regents of University of California (1984) 153 Cal.App.3d 723, 731 [200 Cal.Rptr. 628], it is reasonable to expect a greater showing of excuse the older the case gets.
In light of this authority, two questions arise: Did the plaintiff diligently process its claims against Bank of America? Was the delay in processing the *473cases reasonable? The simple answer to both questions is “No.” The records show a total lack of diligence without any redeeming excuse.
The records in both cases fail to demonstrate diligence. In the first action, plaintiffs statement of facts, delineating its expended efforts, indicates plaintiff deposed a Bank of America employee who had primary responsibility for the transaction involved in the litigation and examined “hundreds” of documents. This deposition was taken on September 22, 1980, and covered 208 pages and 77 exhibits. The Bank of America produced numerous other documents not part of the record. Plaintiff also served defendant bank with interrogatories, which, after extensions were granted, were never answered. Finally, plaintiff suggests it “was anxious and willing at any time to reach a settlement with respondent Bank had its counsel given the slightest encouragement to continue such discussions.”
Plaintiffs activities in the second action correspond to its activities in the first. Plaintiff relies upon its deposition of the Bank of America employee, mentioned above. Plaintiff propounded interrogatories to Bank of America on April 5, 1983. Defendant bank answered these interrogatories on June 6,1983. Plaintiff again indicates it was anxious and willing to settle had Bank of America given any encouragement.8
Plaintiff argues its diligence is clearly revealed in both actions. It bases this assertion on its naming 28 defendants in the first action and 51 defendants in the second, and the difficulties entailed in locating, serving, and negotiating with each party. It notes it successfully reduced the number of defendants from 28 to 2 in the first action and from 51 to 4 in the second action. Plaintiff fails to explain why no action was taken for over 19 months after termination of the Woodside et al. bankruptcies on January 6, 1983. Plaintiff fails to explain why it failed to foreclose on the mechanics liens for over four and a half years and allowed the titles to be clouded by inaction.9 Nor does plaintiff have any explanation for the failure to sever out the Bank of America for the same period of time. In the course of 5 years, plaintiffs counsel, counsel’s associates and legal assistants spent only 285 hours on cases involving 79 defendants.
The prejudice to the record titleholders and the Bank of America was skillfully avoided in the attempt to justify the delay by allegedly indulging in four *474and a half years of settlement negotiations. Any delay occasioned by Bank of America’s failure to negotiate does not relieve plaintiff of proceeding diligently with its lawsuit.10 (See Cameron v. Cameron (1952) 110 Cal. App.2d 258, 261-262 [242 P.2d 408].)
Plaintiff further attempts to justify its inaction in both cases by waiting on the outcome of the various bankruptcy proceedings. “Counsel for appellant [plaintiff] reviewed in depth the petition, schedules, and statement of affairs of most of the defendants who had filed proceedings in bankruptcy, and also attended meetings of creditors. The claim of appellant [plaintiff] represented over one-half of the total claims in those bankruptcies, and it appeared quite possible that there would be sufficient bankrupt estate to permit payment of most of appellant’s [plaintiff’s] claim from the bankrupt estates, reducing any unpaid balance to an amount which would lend itself easily to settlement by negotiation if the parties would await completion of the bankruptcy administration.”
Plaintiff’s statement is somewhat disingenuous because it fails to advise that all of the main obligors had filed bankruptcy before these actions were filed. Plaintiff does not cite any case as to why counsel’s assumption the bankruptcy would require a stay of the entire action was reasonable. (See Lane v. Newport Bldg. Corp. (1986) 176 Cal.App.3d 870 [222 Cal.Rptr. 443].)
Plaintiff had the choice of awaiting the conclusions in the bankruptcy proceedings, requesting the bankruptcy stay be vacated, or moving to sever defendants in bankruptcy. Had plaintiff proceeded with a timely motion to sever and had Bank of America resisted the motion, any delay could have then been imputed to the bank and not plaintiff. Plaintiff’s choice was within its control and does not excuse the failure for over four and a half years to pursue claims against defendants who have not filed for bankruptcy. Bank of America was not an indispensable party and plaintiff concedes “[i]t may have been possible to sever the stop notice causes of action from the mechanic’s lien causes of action, as well as sever all parties who were then in bankruptcy ____” This concession gains added relevance when considered with plaintiff’s failure to proceed for over 19 months after termination of the Woodside et al. bankruptcies. I conclude plaintiff’s conduct was unreasonable in waiting to see what would happen in the bankruptcy proceedings. I find plaintiff’s “judicial efficiency argument” unpersuasive.11
Because plaintiff failed to make an adequate showing of excuse for the delay, there is no requirement a defendant affirmatively establish prejudice *475before the action may be dismissed for delay in prosecution. I am persuaded prejudice may be inherent in protracted delay, especially in the cases such as those at bar when plaintiff attempted to set the actions for trial with only 66 and 96 days before the 5-year statute ran. (Hoffman v. State of California, supra, 171 Cal.App.3d at p. 1109; Lopez v. Larson, supra, 91 Cal.App.3d at pp. 401-402.) Furthermore, even if defendant has not been prejudiced, “ ‘[t]he legislative policy underlying section 583 is not grounded solely in prejudice caused by delay to a defendant. Its purpose, too, is to expedite the administration of justice by compelling every person who files an action to prosecute it with promptness and diligence.’ [Citations.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 332 [216 Cal.Rptr. 718, 703 P.2d 58].)
The trial court’s section 583, subdivision (a), order clearly makes reference to the criteria established in California Rules Court, rule 373(e).12 I find no abuse of discretion. I would affirm the judgment dismissing plaintiff’s action against Bank of America.
A petition for a rehearing was denied April 9, 1987.
Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.
Unless otherwise indicated, all section references in this.opinion are to the Code of Civil Procedure.
Section 583, subdivision (a), provided in pertinent part: “The court, in its discretion,... may dismiss an action for want of prosecution pursuant to this subdivision if it is not brought to trial within two years after it was filed.”
Woodside Construction Co. was the construction company and the general contractor primarily responsible for all of the debts sued upon.
PIaintifPs causes of action against Bank of America were based on defendant bank’s failure to withhold sufficient funds after plaintiff served it stop notices and defendant bank’s failure to pay money assigned to plaintiff.
Michael Wagner and Anthony DiMaggio were also pursuing an action against Bank of America. Plaintiff claimed the resolution of that action was holding up the bankruptcy proceedings with respect to Wagner and DiMaggio.
See footnotes 2 and 3, ante.
Bank of America filed a motion to dismiss September 12, 1984, and requested the court dismiss on its own motion.
The dismissal only concerned the defendant, Bank of America.
Plaintiff does not indicate why it did not make use of the settlement program provided by this court.
Civil Code section 3147 provides:
“If the action to foreclose the lien is not brought to trial within two years after the commencement thereof, the court may in its discretion dismiss the same for want of prosecution.”
Affidavits in opposition to the motion to specially set indicate minimal settlement negotiations.
Plaintiff contends it was assisting the court by attempting to settle without trial.
“The Court, further, on its own Motion, and after diligent review of the file, dismisses the action under 583(a) of the Code of Civil Procedure. This case is not prepared from the standpoint of pleadings, current status of the parties, discovery, or any settlement efforts. Plaintiff has totally failed to pursue its rights. It has, instead, sat back on its case, allowing the passage of time to erode some of the case. This does not, in the Court’s opinion, justify it now coming in and claiming it has somehow benefited the case management. There has been no diligence; nor would the utmost diligence at this point allow sufficient preparation for trial.”