( Braham v. Sorenson,supra, 119 Cal.App.3d at pp. 372-373.) Among the cases that have followed the Braham decision are Grimm v. Thayer,supra, 188 Cal.App.3d 866, 870; Gilbertson v. Osman, supra, 185 Cal.App.3d 308, 317; Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 52 [ 222 Cal.Rptr. 713]; and Banfield v. Sierra View Local Dist.Hospital (1981) 124 Cal.App.3d 444, 459-460 [177 Cal.Rptr. 290]. As we shall explain, the Courts of Appeal's application of section 356, the general tolling provision, cannot be harmonized with section 364(d)'s extension provision.
Thus it is sometimes said that closer scrutiny is given to a grant, rather than a denial, of dismissal. (See, e.g., Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 51 [ 222 Cal.Rptr. 713].) However, the policy favoring trial on the merits is not absolute and may prevail only where the plaintiff makes a showing of excusable delay.
(3) While the issues of plaintiff's diligence and prejudice to the defendant resulting from any delay are not expressly mentioned in the factors enumerated in rule 373(e), these issues must also be taken into consideration in ruling on and in reviewing a ruling on a motion to dismiss pursuant to former section 583, subdivision (a). (See Blank v. Kirwan (1985) 39 Cal.3d 311, 332 [ 216 Cal.Rptr. 718, 703 P.2d 58]; Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 50-52 [ 222 Cal.Rptr. 713]; Tannatt v. Joblin (1982) 130 Cal.App.3d 1063 [ 182 Cal.Rptr. 112] .) (1c) Here the facts show considerable diligence and little or no prejudice. The affidavits in support of and in opposition to the motions showed the following with respect to the issues of plaintiff's diligence or prejudice to the defendants: Plaintiff has completed all its discovery, including a 3-day deposition of a bank employee and a review of 77 exhibits submitted with the deposition; plaintiff reviewed numerous other documents produced by the bank; plaintiff had hundreds of telephone calls about these cases and had obtained and reviewed thousands of pages of documents related to the financing and construction on the projects as well as title company documents.
The two remaining cases dealing with this issue were both decided this year. ( Gilbertson v. Osman (1986) 185 Cal.App.3d 308 [ 229 Cal.Rptr. 627]; Hilburger v. Madsen (1986) 177 Cal.App.3d 45 [ 222 Cal.Rptr. 713].) Each case involved plaintiffs who had filed their notice of intent to sue within 90 days of the expiration of the 1-year statute of limitations and had filed their complaint within 1 year and 90 days of the accrual of their causes of action.
And they do not deny an investigation was undertaken by defense insurance or risk management personnel. As noted in Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 50 [ 222 Cal.Rptr. 713]: "The insurance carrier for both [physician defendants] was fully informed of the suit at an early date, had investigated appellant's allegations and participated in settlement negotiations. . . . Both [defendants'] declarations offer general and well-worn allusions to prejudice [citation], but the involvement of the insurance carrier and the early notices of intentions to sue negates such a claim. [Citation.] Furthermore, there was no finding by the court of prejudice.
In some of those cases the appellate court concluded the plaintiff met his burden and dismissal was unwarranted. ( Highland Stucco Lime, Inc. v. Superior Court, supra, 222 Cal.App.3d at pp. 645-646; Pomona Federal Plaza, Ltd. v. Investment Concepts, Inc., supra, 203 Cal.App.3d at pp. 221-224; Cordova v. Vons Grocery Co., supra, 196 Cal.App.3d at pp. 1532-1536; Cubit v. Ridgecrest Community Hospital, supra, 194 Cal.App.3d at pp. 1562-1569; Rim Forest Lumber Co. v. Woodside Construction Co., supra, 190 Cal.App.3d at pp. 460-470; Hilburger v. Madsen (1986) 177 Cal.App.3d 45 [ 222 Cal.Rptr. 713]; Visco v. Abatti (1983) 144 Cal.App.3d 904 [ 192 Cal.Rptr. 833]; Tannatt v. Joblin (1982) 130 Cal.App.3d 1063 [ 182 Cal.Rptr. 112]; Garza v. Delano Union Elementary School Dist. (1980) 110 Cal.App.3d 303 [ 167 Cal.Rptr. 629].) In other cases, however, the appellate court concluded that the plaintiff's showing was insufficient and dismissal was justified even if the defendant did not demonstrate actual prejudice from the delay.
This construction has been followed by all appellate courts considering this issue. (See, e.g., Paxton v. Chapman General Hospital, Inc. (1986) 186 Cal.App.3d 110, 230 Cal.Rptr. 355 [Fourth Dist., Div. Three]; Gilbertson v. Osman (1986) 185 Cal.App.3d 308, 229 Cal.Rptr. 627 [Fourth Dist., Div. Two]; Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 222 Cal.Rptr. 713 [Second Dist., Div. Five]; Estrella v. Brandt (9th Cir.1982) 682 F.2d 814; Banfield v. Sierra View Local Dist. Hospital (1981) 124 Cal.App.3d 444, 177 Cal.Rptr. 290 [Fifth Dist.]; Braham v. Sorenson (1981) 119 Cal.App.3d 367, 174 Cal.Rptr. 39 [Second Dist., Div. Two]; Gomez v. Valley View Sanitorium (1978) 87 Cal.App.3d 507, 151 Cal.Rptr. 97 [Fourth Dist., Div. One].) Based on the unanimity of this authority, the appellants were undoubtedly reasonable in believing the statute of limitations was extended 90 days.
(4) Because courts prefer trial on the merits ( City of Los Angeles v. Gleneagle Dev. Co., supra, 62 Cal.App.3d at p. 561) we are obligated to closely scrutinize matters which are dismissed. ( Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 51-52 [ 222 Cal.Rptr. 713].) The more compelling policy favors resolution on the merits when plaintiff makes a showing of excusable delay.
Because section 364 requires a 90-day notice before commencement of an action based on professional negligence of a health care provider, it serves to stay the suit and triggers section 356 which mandates that the 90-day period specified in section 364 be excluded from calculation of the time limited. ( Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 52 [ 222 Cal.Rptr. 713].) These 90 days are added to the 1-year statutory time.
Since our decision, other courts have recognized that the Hurtado rationale is irreconcilable with Blank and should not be followed. (See, e.g., Dick v. Superior Court (1986) 185 Cal.App.3d 1159, 1166-1167 [ 230 Cal.Rptr. 297]; Adams v. Roses (1986) 183 Cal.App.3d 498, 505-506 [ 228 Cal.Rptr. 339]; Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 51-52 [ 222 Cal.Rptr. 713].) At the same time, each of these cases acknowledges that lack of prejudice to a defendant remains a valid consideration even after Blank where the plaintiff has acted diligently from the outset.