Lopez

MEMORANDUM OPINION

This medical malpractice action is brought by the parents of Elizabeth Bautis-ta, now a two-year old child, who was allegedly injured by the negligence of the doctors and staff attending her birth on November 20, 1980. Plaintiffs, Etelbina Lopez aka Etelbina Bautista (the “mother”) and Tomas Bautista (referred to collectively as “plaintiffs”, or “the parents”) contend that the negligence of the defendants in misdiagnosing the mother’s pre-delivery condition and in mishandling the delivery process caused the child to suffer permanent brain damage. She is now afflicted with cerebral palsy and severe mental retardation. The case is presently before this Court on defendants’ motion to dismiss the complaint under Rule 12(b)(7) Federal Rules of Civil Procedure 1 (all references to Rules are made to the Federal Rules of Civil *27 Procedure unless otherwise indicated) and under Rule 12(b)(6) for failure to comply with the California Tort Claims Act filing requirements.

Plaintiffs, both Mexican nationals, have invoked the diversity jurisdiction of this Court pursuant to 28 U.S.C. § 1332 . They seek to recover damages under § 376 of the California Code of Civil…