Toigo

This is an action for medical malpractice. The complaint was filed December 8, 1978. It alleges injury occurring on December 10, 1977, as the result of negligent examination, diagnosis and treatment of plaintiff by defendant, a medical doctor.

This appeal results from an adverse judgment entered against plaintiff after the trial court granted defendant’s motion to strike the complaint. The basis of the motion was plaintiff’s failure to give defendant 90 days’ notice prior to commencing a professional negligence action as required by Code of Civil Procedure section 364. Inasmuch as failure to comply with section 364 is not jurisdictional we reverse the judgment.

Plaintiff concedes the notice required by section 364 was not given prior to filing the complaint. The court granted defendant’s motion to strike and ruled that failure to comply with section 364 required that the complaint be stricken.

Section 364, subdivision (a), provides that, “No action... may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.” Section 364 is part of chapter 5 (tit. 2, p. 2) of the Code of Civil Procedure and pertains to…