Berg

FACTUAL AND PROCEDURAL BACKGROUND

In September 2001, appellant Erika A. Berg initiated this action against her former dentist, respondent Ronald L. Darden, for injuries she suffered as a result of his alleged malpractice.

On February 8, 2002, Berg’s attorney, Arlan A. Cohen, sent a letter to Darden’s attorney, Burdick M. Ray. The three-page letter addressed, among other things, discovery-related issues and the parties’ respective positions regarding the merits of the litigation. In the last paragraph of the letter, which forms the basis for the instant appeal, Cohen stated:

“This letter includes and hereby implements a statutory C.C.P. Section 998 offer by Erika Berg to settle this case for $225,000. If there is no acceptance of this offer within 30 days, we will, if at trial we receive a greater sum from Dr. Darden, seek the full panoply of 998 awards, including prejudgment interest starting from the date of service and expert costs.”

Cohen faxed the letter to Ray’s office on the evening of February 8, 2002. Cohen claims he also sent the letter to Ray by mail.

Ray received and reviewed the letter, but he told Darden he did not believe it was a valid Code of Civil…