A California appellate court rejected an argument that an attorney was barred from recovering under a contract for attorney fees because the attorney breached the contract by filing a lawsuit instead of making an arbitration claim.

In Farina v. Wedbush, No. D050926, 2008 WL 2406824 (Cal. Ct. App.4d Jun. 16, 2008), Nannette Farina represented Edward and Jean Wedbush in a lawsuit regarding property owned by the Wedbushes. After she did not receive payment, Farina filed a lawsuit to recover fees, in spite of the parties' agreement to arbitrate disputes.

The trial court found in favor of Farina and ordered the Wedbushes to pay the fees requested by Farina. The Wedbushes appealed.

This Court rejected the Wedbushes' argument that Farina materially breached the agreement by filing for litigation rather than arbitration.

No authority was offered to indicate that Farina's action was a material breach, i.e. that payment under a contract can be avoided by this type of breach; or that arbitration was a condition of the contract.

Rather, the Wedbushes should have moved to compel arbitration, the appropriate procedure to move their dispute to the proper forum.

Accordingly, the trial court did not err in awarding Farina fees for this reason.