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1 All parties have consented to my jurisdiction,

including entry of final judgment, pursuant to 28 U.S.C. 

§ 636(c) for all proceedings. 

1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LAURA FUJISAWA, et al.

Plaintiff(s),

v.

COMPASS VISION, INC., et

al.,

Defendant(s).

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No. C07-5642 BZ

Related Cases: C07-3431 BZ

 C08-4118 BZ

 C09-2016 BZ

ORDER GRANTING MAXIMUS’S

MOTION FOR SUMMARY JUDGMENT

Third-Party Defendant and Counterclaimant Maximus, Inc.

(“Maximus”) moves for summary judgment against Compass Vision,

Inc. (“Compass”) on its complaint for indemnity.1 Maximus

does not move for summary judgment on its counterclaim against

Compass. For the following reasons, Maximus’s motion is

GRANTED.

 Maximus and Compass entered into a Consulting Agreement

(“the Contract”) which required Compass to “assist with the

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2 A full recitation of the facts underlining their

dispute appears in the Order denying Compass’s motion for

summary judgment. See Doc. No. 184.

2

development, coordination, and provision of laboratory

services for Participants of the California Department of

Consumer Affairs Diversion Program,” the program in which

plaintiff Dr. Fujisawa was a participant.2 Doc. No. 226-1,

Swider Decl. Ex. 4. Maximus’s sole obligation under the

Contract was to “pay Compass Vision” according to a fee

schedule. Under the indemnification provision of the

Contract, Maximus agreed to

defend, indemnify and hold Compass Vision harmless from

and against any and all claims, losses, liabilities or

expenses (including without limitation attorneys’ fees)

which may arise, in whole or in part, out of (i) the

negligence or willful misconduct of Maximus, its

employees or agents, or (ii) a breach by Maximus of its

obligations under this agreement. 

Id. § 13, P. 4. 

Compass filed a third party complaint against Maximus for

(1) breach of contract, (2) contractual indemnity, (3)

equitable indemnity and contribution, and (4) declaratory

relief. Doc. No. 113. The only breach of which Compass

complains is Maximus’s alleged failure to indemnify and defend

Compass in the underlying action. Essentially, all four

causes of action seek indemnity from Maximus for any damages

and attorney fees which Compass incurs defending plaintiff Dr.

Laura Fujisawa’s complaint. Dr. Fujisawa did not sue Maximus

and makes no claims against it.

The parties agree that Compass is only seeking indemnity

for Dr. Fujisawa’s claim, to the extent it arises from

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Maximus’s negligence or willful misconduct. Opp. p. 12:8-9;

Motion p. 9. By pointing to a lack of evidence, Maximus

shifted the burden to Compass first to present evidence of

negligent or willful misconduct by Maximus that resulted in

harm to plaintiff for which she seeks to hold Compass

responsible. Dr. Fujisawa alleges that her damages in this

case stem from the wrongful promotion and use of ETG testing

as a reliable method of detecting intentional alcohol

consumption. Maximus can only be required to indemnify

Compass for Dr. Fujisawa’s damages if its negligence or

willful misconduct contributed to her damages.

Several provisions of the Joint Stipulated Statement of

Undisputed Material Facts resolve the issue of indemnity. 

Doc. No. 212-1, “Joint Statement.” Compass stipulated that 

in its administration of the Program, however, Maximus 

did not: promote the implementation of ETG testing in the

Program, decide to implement ETG testing, decide the cutoff levels used to determine a positive ETG result,

determine if a given ETG test result was a positive or a

negative, or make decisions to terminate, discipline, or

remove a participant from the Program.

Joint Statement, No. 9 (emphasis in original). The parties

further agreed that the Board implemented ETG testing, that

Compass promoted ETG testing, and that Maximus was a mere

middleman responsible for gathering test results from Compass

and transmitting them to the Board. Joint Statement Nos. 10,

11, 41. To the extent the Joint Statement tracks the

provisions of Dr. Fujisawa’s complaint, Compass has agreed

that Maximus played no role in the damages that Dr. Fujisawa

is claiming. It is difficult to conceive how Compass can

attribute any of Dr. Fujisawa’s damages to Maximus’s

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negligence or willful misconduct given the undisputed facts.

Compass unsuccessfully attempts to defeat summary

judgment by presenting evidence that Maximus failed to perform

its obligations under its contract with the Board. Compass

has not presented any evidence that anything Maximus did or

did not do under its contract with the Board resulted in the

harm for which Dr. Fujisawa is seeking relief. Compass

presented evidence that Maximus failed to fulfill certain

contractual obligations, such as appointing a Medical Advisor,

but does not establish how that caused the problems with EtG

testing for which Dr. Fujisawa seeks to hold Compass liable. 

Compass further states that “Maximus had the clinical

responsibilities for the Program” but fails to explain how

that creates a triable issue of fact, given the undisputed

facts. Even if Maximus did hold such responsibilities and

failed to discharge them, Compass has not established how that

would obligate Maximus to indemnify Compass should Dr.

Fujisawa establish the deficiencies in the EtG testing program

she claims.

At oral argument, Compass reiterated the claim that

Maximius’s alleged failure to perform certain of its

contractual obligations with the Board require Maximus to

indemnify Compass. This argument misses the mark. Even if

Maximus failed to appoint a Medical Review Officer or to

discharge its clinical responsibilities, Dr. Fujisawa is not

seeking damages for such conduct. None of plaintiff’s claims

against Compass arise from Maximus’s conduct, and Compass is

therefore not entitled to indemnity from plaintiff’s claims. 

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The only evidence that Compass submitted was declarations

replete with general testimony and legal conclusions. See

e.g. Doc. No. 226-3, Brown decl. ¶ 6, 10, 14. The Brown

declaration does not address Dr. Fujisawa’s participation in

the Program with any degree of specificity. It is unclear if

Ms. Brown even offers an opinion on Dr. Fujisawa’s case. For

example, Ms. Brown states that if Maximus had provided certain

resources, “it is likely that the Plaintiff would have

successfully completed the program.” Id. ¶ 8. Aside from

being entirely speculative, the conclusion offered by Ms.

Brown does not establish how the provision of additional

resources by Maximus would have altered the discipline that

the Board imposed on Dr. Fujisawa. The declaration is written

almost entirely in generalities and does not create a triable

issue of fact as to causation. The McKown declaration suffers

from similar defects. Doc. No. 226-2. In that declaration,

the President of Compass simply opines on the legal

obligations and shortcomings of Maximus. The declaration does

not address Dr. Fujisawa’s case at all. Accordingly, the

declaration is entitled to very little weight and does not

create a triable issue of fact. 

Compass cannot prove its entitlement to indemnity from

Maximus as a matter of law. The undisputed facts establish

that Maximus had no role in causing the harm of which Dr.

Fujisawa’s complains. IT IS THEREFORE ORDERED that Maximus’s

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motion for summary judgment on Compass’s third-party complaint

is GRANTED. 

Dated: August 13, 2010 

 Bernard Zimmerman

 United States Magistrate Judge

G:\BZALL\-BZCASES\FUJISAWA V. COMPASS VISION\MAXIMUS MSJ ORD.wpd

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