San Francisco City and County Super. Ct. No. CGC05447679. Ct.App. 1/4 A114945. Judge: James L. Warren.
The opinion of the court was delivered by: Chin, J.
In 2005, the San Francisco 49ers, Ltd. (49ers') began implementing a policy of the National Football League (NFL) requiring all patrons at their football games to submit to a patdown search before entering the stadium. Plaintiffs claim the policy violates their state constitutional right to privacy. (Cal. Const., art. I, § 1.) The case has come to us after the superior court sustained a demurrer and dismissed the action. On appeal after the superior court has sustained a demurrer, we assume as true all facts alleged in the complaint. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) In this case, assuming the alleged facts to be true, we hold the record does not contain enough information to establish as a matter of law that the complaint fails to state a cause of action. Accordingly, this action is not susceptible to disposition on demurrer. We reverse the Court of Appeal's judgment and remand the matter for further proceedings consistent with this opinion.
In December 2005, plaintiffs Daniel and Kathleen Sheehan filed a complaint for injunctive and declaratory relief against the 49ers'. It alleged the following:
Plaintiffs are longtime 49ers' season ticket holders. Beginning in the fall of 2005, the 49ers' instituted a patdown inspection of all ticket holders attending the 49ers' home games. Plaintiffs and all other ticket holders "were subjected to a pat-down search by 'Event Staff' screeners before they were allowed to enter the stadium. On each such occasion, after being herded through barricades, [plaintiffs] were forced to stand rigid, with arms spread wide. The 49ers' screeners then ran their hands around the [plaintiffs'] backs and down the sides of their bodies and their legs. Members of the San Francisco Police Department stood a few feet away from the screeners and observed the pat-down searches taking place." The 49ers' implemented the patdown policy pursuant to a policy the NFL promulgated in August 2005, by which "stadium screeners are supposed to conduct physical searches by 'touching, patting, or lightly rubbing' all ticket holders entering every NFL stadium for each NFL game [that] year." Plaintiffs "object to being forced to undergo these suspicionless searches as a condition of retaining their season tickets."
The complaint alleged that the patdown searches violated plaintiffs' state constitutional right to privacy. (Cal. Const., art. I, § 1.) It sought a declaration that the searches were unconstitutional and an injunction prohibiting any further such searches.
The 49ers' demurred to the complaint, arguing that it did not state a cause of action. At the hearing, the trial court questioned whether the relief sought was ripe because the 49ers' 2005 season was over. Plaintiffs stated they had bought the 49ers' 2006 season tickets and subsequently, in March 2006, amended their complaint to include this fact. The amended complaint also alleged that plaintiffs believed the 49ers' intended to continue conducting patdown searches of all persons entering or reentering the stadium during the next season. Both parties stipulated that the demurrer would apply to the amended complaint. Ultimately, the trial court sustained the demurrer without leave to amend and dismissed the action with prejudice. Plaintiffs appealed.
The Court of Appeal affirmed. It "conclude[d] that the Sheehans cannot demonstrate that they had a reasonable expectation of privacy under the circumstances . . . ." It explained that "rather than submit to the pat-down the Sheehans had the choice of walking away, no questions asked." Justice Rivera dissented. She "disagree[d] that the purchase of future tickets with knowledge of the search policy - or acquiescence in a pat-down search to gain entry to the 49ers' games - supports a conclusion as a matter of law that the Sheehans have relinquished their reasonable expectation to be free from unjustified, intrusive searches." She would have reversed the judgment and remanded the matter for further factual development.
We granted plaintiffs' petition for review, which raised the question whether the Court of Appeal properly found they validly consented to the search policy.
California Constitution, article I, section 1, provides, "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." (Italics added.) The phrase "and privacy" was added to the Constitution by a voter initiative adopted in 1972. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 15 (Hill) [the "Privacy Initiative"].)
In this case, plaintiffs allege that the 49ers' patdown policy violates their state constitutional right to privacy. The case comes before us after the superior court dismissed the case on demurrer. This means that the 49ers' have not yet even filed an answer, given any explanation or justification for the alleged search policy, or asserted any defenses. The only record we have, and all we have to go by in deciding this case, is the complaint. In this procedural posture, we must assume that all of the facts alleged in the complaint are true. (Evans v. City of Berkeley, supra, 38 Cal.4th at p. 6.) Moreover, we may affirm the sustaining of a demurrer only if the complaint fails to state a cause of action under any possible legal theory. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810.) The Court of Appeal held that plaintiffs validly consented to the search policy. It may ultimately be right, but the meager record before us does not establish valid consent as a matter of law. In particular, the 49ers' have not demonstrated that the allegations of the complaint fail to state a cause of action under any possible legal theory. Further factual development is necessary.
In Hill, supra, 7 Cal.4th 1, a case involving a challenge to the student-athlete drug testing policies of the National Collegiate Athletic Association (NCAA), we considered the showing a person must make to state a violation of California's constitutional right to privacy. That decision made clear that "the right of privacy protects the individual's reasonable expectation of privacy against a serious invasion." (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370, citing Hill, supra, at pp. 36-37.) As we recently summarized Hill's holding, "The party claiming a violation of the constitutional right of privacy established in article I, section 1 of the California Constitution must establish (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest." (International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 338, citing Hill, supra, at pp. 39-40.) "A defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests." (Hill, supra, at p. 40.)
Hill further explained that, "[c]onfronted with a defense based on countervailing interests, the plaintiff may undertake the burden of demonstrating the availability and use of protective measures, safeguards, and alternatives to the defendant's conduct that would minimize the intrusion on privacy interests." (Hill, supra, 7 Cal.4th at p. 38.) Moreover, "[t]he particular context, i.e., the specific kind of privacy interest involved and the nature and ...