Boquilon

In these cross-appeals, the parties seek review of a judgment of the San Mateo Superior Court by which defendant Mary Beckwith was found liable for a violation of the Home Equity Sales Contracts Act (Civ. Code, § 1695 et seq.) [1] and ordered to pay plaintiffs Felix and Natividad Boquilon damages in the amount of $10,290.60, with prejudgment interest from October 26, 1990, plus $19,852.50 in attorney and expert fees, and $2,026.05 in court costs as authorized by section 1695.7.

In the principal appeal, Beckwith contends that there was no evidence that the parties intended a "sale" to her of the Boquilons' home and that, therefore, there could be no violation of the Home Equity Sales Contracts Act. In their cross-appeal, the Boquilons argue that the trial court erred by: entering judgment in favor of Beckwith on their cause of action for fraud; finding that a codefendant, Panda Realty, was not liable for any of their damages; refusing to award exemplary damages pursuant to section 1695.7; and granting Beckwith certain credits against the judgment. The Boquilons also contend that the trial court abused its discretion by awarding only 50 percent of the…

In these cross-appeals, the parties seek review of a judgment of the San Mateo Superior Court by which defendant Mary Beckwith was found liable for a violation of the Home Equity Sales Contracts Act (Civ. Code, § 1695 et seq.) 1 and ordered to pay plaintiffs Felix and Natividad Boquilon damages in the amount of $10,290.60, with prejudgment interest from October 26, 1990, plus $19,852.50 in attorney and expert fees, and $2,026.05 in court costs as authorized by section 1695.7.

In the principal appeal, Beckwith contends that there was no evidence that the parties intended a “sale” to her of the Boquilons’ home and that, therefore, there could be no violation of the Home Equity Sales Contracts Act. In their cross-appeal, the Boquilons argue that the trial court erred by: entering judgment in favor of Beckwith on their cause of action for fraud; finding that a codefendant, Panda Realty, was not liable for any of their damages; refusing to award exemplary damages pursuant to section 1695.7; and granting Beckwith certain credits against the judgment. The Boquilons also contend that the trial court abused its discretion by awarding only 50 percent of the amount of attorney fees…

J.,Concurring and Dissenting.—I concur in the modification of the judgment of the trial court increasing the amount of actual damages due the Boquilons, together with prejudgment interest, and the award of attorney fees at trial and on appeal.

I respectfully dissent from that portion of the majority opinion concluding that Beckwith did not violate subdivision (b)(3) of Civil Code Section 1695.6, 1 and that the Boquilons are therefore not entitled to a mandatory award of exemplary damages. The majority’s forced finding flies in the face of the language of the Home Equity Sales Contract Act (the Act) and frustrates its purpose.

*1724 I.

The purposes of the Act could not have been more clearly stated. In the first section, the Legislature finds that “financially unsophisticated" homeowners whose residences are in foreclosure “have been subjected to fraud, deception and unfair dealing by home equity purchasers . . . through the use of schemes which often involve oral and written misrepresentations, deceit, intimidation, and other unreasonable commercial practices.” (§ 1695, subd. (a).) Accordingly, and in order to advance “the express policy of the state to preserve and guard the…