I dissent. The Fourth District Court of Appeal, Division One, first dealt, correctly, in my view, with the problem of the limitations period applying to health care providers in Gomez v. Valley View Sanitorium (1978) 87 Cal.App.3d 507 [151 Cal.Rptr. 97]. *463Lately, the Second District’s Division Two considered it in Braham v. Sorenson (1981) 119 Cal.App.3d 367 [174 Cal.Rptr. 39]. With all deference to the Second District, the analysis in Braham I find wanting. The same is true of the majority’s analysis here.
The analysis which confirms my view is to examine the operation of the statute of limitations when the required section 364, subdivision (a) notice is given within 90 days of the running of the section 340.5 limitations period. That analysis proceeds by first assuming the absence of section 364, subdivision (d), but presence of section 356, and then making the reverse assumption. Thereafter, the meaning of the joint operation of the latter two sections, when considered together, becomes clear.
In the first instance, assuming section 364, subdivision (d) does not exist, but section 356 does, the effect of giving a section 364, subdivision (a) notice within 90 days of the running of the 1-year limitations period of section 340.5, means “the time of the continuance of the .. . prohibition is not part of the time limited for the commencement of the action.” (Code Civ. Proc., § 356.) Since the statute of limitations is not extended, the balance of the limitations period remaining when the notice is given must remain, and doesn’t start running again until the 90-day-no-action-may-be-filed-hiatus period of section 364, subdivision (a) terminates. Thus, in Gomez, when plaintiffs gave the section 364, subdivision (a) notice on November 26, 1976, some 71 days remained before the statute ran on February 5, 1977. After the 90-day-no-action-may-be-filed-hiatus period of section 364, subdivision (a) ended, 71 days still remained because of section 356, and the action was timely filed on March 28, 1977. But, under that assumption, in both Braham and the instant case, the plaintiffs would lose. Each plaintiff filed his or her lawsuit after the expiration of the number of days remaining unexpended before the running of the limitations period when the section 364, subdivision (a) notice was given was added on to the 90-day-no-ac-tion-may-be-filed-hiatus period of section 364, subdivision (a).
Without section 364, subdivision (d) in existence, all we need know to solve a limitations problem is the number of days remaining before the expiration of the limitations period when the 364, subdivision (a) notice is given, tack that number on to the end of the 90-day-no-action-may-be-filed-hiatus period of section 364, subdivision (a), and see if the action was filed before such a period expired.
*464In the second instance, assuming the existence of section 364 and the nonexistence of section 356, whenever the section 364, subdivision (a) notice is served within 90 days of the end of section 340.5 limitations period, the result is a true “Catch 22.” Subdivision (d) provides the “time for the commencement of the action shall be extended 90 days from the service of the [§ 364, subd. (a)] notice.” So there is actually a limitations period longer than 1 year, and its length depends on when the notice is given within the 90-day period before normal expiration. . However, because section 364, subdivision (a) forbids an action being commenced within 90 days of the giving of notice, there is a disappointing effect of this longer than 1-year limitations period. The section, without the aid of section 356, really would self-destruct, as suggested in Gomez (87 Cal.App.3d at p. 510).
Assuming no section 356, if plaintiffs counsel gives the required subdivision (a) notice within 90 days of the running of the statute of limitations, he must brave the malpractice action against him by his client if he obeys the commandment of section 364, subdivision (a) not to file the action for 90 days because the statute would run before the action could be filed; or he must brave the wrath of the State Bar1 if he files his lawsuit in defiance of subdivision (a).
An analysis of sections 356 and 364 together leads to the conclusion that a plaintiff injured by the negligence of a health care provider, who gives notice within 90 days of the running of the section 340.5 limitations period, gets the benefit of an extended statute of limitations period because of section 364, subdivision (d), plus the 90 days exclusion period of section 356.
Language referring to “the commencement of” an action is the hoary wording of limitations periods. (See Code Civ. Proc., § 335; see also §§ 340.2, 340.5, 340.6 and 343.) So I conclude section 364, subdivision (d) means that, when the section 364, subdivision (a) notice is given within 90 days of the expiration of the section 340.5 limitations period, there is an actual extension, or elongation, of the-limitations period beyond the 1-year period. Its exact length depends on when the notice is given. If *465the section 364, subdivision (a) notice is given 89 days before the running of the limitations period, there is but a 1-day extension of the limitations period. The extension or elongation of the limitations period can extend up to 90 days when the section 364, subdivision (a) notice is given on the last day of the 1-year limitation period.
That we call the limitations period extended or elongated is important because, as section 356 states, “the time of the continuance ... is not part of the time limited for the commencement of the action.” Where section 364, subdivision (a) forbids filing an action for 90 days after giving notice, and that notice was given within 90 days of the running of the limitations period, then the 90-day-no-action-may-be-filed-hiatus period is all part of the extended or elongated limitations period created by section 364, subdivision (d). The plaintiff is entitled to the extended limitations period plus all 90 days of the section 356 hiatus period.
I would reason in Gomez, Braham and the instant case as follows:
(1) In Gomez the limitations period would be extended by section 364, subdivision (d) to February 24, 1977, 90 days after the November 26, 1976, notice. Then the 90-day exclusion of Code of Civil Procedure section 356 required the action to be filed on or before May 25, 1977, or be barred by the statute of limitations. The action was timely filed on March 28, 1977.
(2) In Braham the limitations period would be extended by section 364, subdivision (d) to June 20, 1979, 90 days after the March 22, 1979, notice. Then the 90-day exclusion of section 356 required the action to be filed on or before September 18, 1979, or be barred by the statute of limitations. The action was timely filed on July 19, 1979.
(3) In the instant case, the limitations period would be extended by section 364, subdivision (d) to June 12, 1978, 90 days after the March 14, 1978, notice. Then the 90-day exclusion of Code of Civil Procedure section 356 required this action to be filed on or before September 10, 1978, or be barred by the statute of limitations. So, this action too, was timely filed on August 9, 1978.
Under the reasoning of Braham, and the majority here, the only date we need know to decide each of these cases is the date the statute of limitations would run under Code of Civil Procedure section 340.5. *466Then, one must add 90 days because of Code of Civil Procedure section 356, and see if the action was filed before that period expired. Section 364, subdivision (d) becomes a dead letter, effectively read out of existence.
Under the majority’s analysis, only the plaintiffs in Gomez filed in a timely manner. Under the theory I believe correctly espoused in Gomez, all the plaintiffs prevail. The majority and I agree that because of the joint operation of Code of Civil Procedure section 364, subdivision (a) and section 356, a plaintiff who gives the section 364, subdivision (a) notice has a minimum of 1 year plus 90 days to sue a health care provider. The majority and the Braham court are correct in deeming the Gomez court’s theory as “dictum.” (119 Cal.App.3d at p. 372; majority opn., ante, at p. 461.) This is so since the plaintiffs in Gomez filed within 1 year plus 90 days from the date of accrual of their action. But, even if dictum, it reasons as sweetly as a direct holding.
The Braham court admits its solution as to when the limitations period runs under section 364, subdivision (d) is a tiny bit mysterious. It allows as how the language of section 364, subdivision (d) language is “somewhat incongruous because it does not explain how much time after the extension the plaintiff still has within which to file the complaint.” (119 Cal.App.3d at p. 372.) That court solves the incongruity by permitting the plaintiff the same number of days to file her action as remained before the running of the statute when she gave her section 364, subdivision (a) notice, the same result one reaches if only section 356 existed. To be precise, Mrs. Braham, when she gave her section 364, subdivision (a) notice on March 22, 1979, still had until March 29 to beat the one-year limitations period described by section 340.5. The Braham court would, after adding in the tolled 90 days she cannot file her action, still leave her the same 7-day period to beat the statute.
This theory has two flaws, both earlier described. First, section 364, subdivision (d). becomes mere surplusage. Secondly, the Braham court’s analysis defeats the clear language of section 356 which tells us the time occupied by a statutory prohibition is “not part of the time limited for the commencement of the action.” (Italics added.) In the instant case, for example, after the section 364, subdivision (a) notice on March 14, 1978, no action could be commenced for 90 days thereafter, or until June 12, 1978. If the action had to be brought by July 27, as I understand the majority here to maintain, or be barred by the statute, *467then appellant lost 45 of the 90 days of the extended limitations period provided by section 364, subdivision (d).
Only the reasoning in Gomez breathes vitality into section 364, subdivision (d), by extending or elongating the limitations period. It also follows the commandment of section 356 by giving to a plaintiff all of the 90-day-no-action-may-be-filed-hiatus period.
Only a rare plaintiff would get 1 year plus all 180 potentially available days, and certainly not appellant. A plaintiff who gave his section 364, subdivision (a) notice on the last day of the 1-year period would be entitled to the 90 days extension of the limitations period provided by section 364, subdivision (d), plus the 90 days tolling of section 356, or a maximum total of 1 year plus 180 days. But in the instant case, I calculate appellant as being entitled to just 1 year and 135 days. I reach this figure because the section 364, subdivision (d) 90-day extension period commenced running on March 14, 1978, and ended June 12, 1978. Then the 90-day tolling period of section 356 gave appellant until September 10, 1978, to file. He beat that deadline.
Two criticisms of my reasoning are voiced by the majority. The first one—that my theory rewards the lazy and indolent—makes me squirm because its indictment is a true bill. I can find no adequate answer to such criticism except to admit the plaintiff, too lazy to give his section 364, subdivision (a) notice until the last day of the one-year limitations period, does indeed receive the maximum benefit. My puritan background may revolt against penalizing the industrious, but I cannot read code sections, validly enacted by the Legislature, out of existence just to reach an otherwise socially desirable result.
I make no concession of validity to the majority’s second criticism of my position, however. I cannot only imagine the result for which I contend was intended by the Legislature, but assert that to be the case. It is the Gomez analysis which rationalizes sections 340.5, 356 and 364 and makes them logical and coherent. It is my view the Legislature knew exactly what it was doing, and that it tried to do exactly what the Gomez court said it did. The Legislature delicately balanced the interests of damaged plaintiffs against health care providers’ needs for some certainty in being free of those claims. It could have used the relatively simple time limits of section 340.5; however, it concluded the health care providers’ need for prior notice of litigation required additional time to file those suits by plaintiffs. It successfully provided a flexible, *468yet readily ascertainable limitations period until the unkind ministrations of Braham and the majority here reduced unnecessarily the allotted period.
Since I find appellant to be within the statutory period here, I do not reach the issue of whether or not the health care providers should be permitted to successfully assert their failure to obey the dictates of Government Code section 53051 to defeat appellant’s claim the statute of limitations was tolled while he attempted to comply with the late claims filing procedure. It seems out of keeping with the claims statute provisions that the hospitals could take advantage of their wrongdoing to defeat appellant. I do not address that problem here except to note my doubts.
I would reverse and permit appellant to proceed on his complaint.
Assigned by the Chairperson of the Judicial Council.
The tepid provisions of Code of Civil Procedure section 365 read as follows: “Failure to comply with this chapter shall not invalidate any proceedings of any court of this state, nor shall it affect the jurisdiction of the court to render a judgment therein. However, failure to comply with such provisions by any attorney at law shall be grounds for professional discipline and the State Bar of California shall investigate and take appropriate action in any such cases brought to its attention.”