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II. Motion for Partial Summary Judgment
Respondent’s motion for partial summary judgment asks that
petitioners be collaterally estopped from relitigating the
following 10 issues allegedly determined in Fitzsimon v. S.C.
Equestrian Lots, Ltd., No.704870 (Cal. Super. Ct. June 9, 1995):
(1) Mr. Johnston intentionally defrauded Mr. Fitzsimon of
his interest in the Shorecliffs golf course;
(2) Mr. Spence and Mr. Johnston sold the Shorecliffs golf
course to a third party for $6 million;
(3) Mr. Spence and Mr. Johnston kept the proceeds from the
sale;
(4) Mr. Spence’s and Mr. Johnston’s combined basis in the
Shorecliffs golf course did not exceed $800,000;
(5) Mr. Fitzsimon’s 23.81-percent share of the cash
generated by the Shorecliffs sale, after adjustments for certain
amounts actually paid to Mr. Fitzsimon pursuant to the fraudulent
stock option sale agreement, was $478,998.55;
(6) during the year 1991, Mr. Spence had no interest in the
SCE partnership;
(7) Sea-Aire and Uppaway are alter egos of Mr. Johnston;
(8) during the year 1991, Mr. Johnston’s total partnership
interest in the SCE partnership was 76.19 percent, consisting of
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