Sheehan v. San Francisco 49ERS, Ltd.

• Citation: 153 Cal.App.4th 396,62 Cal.Rptr.3d 803
• Decision Date: 17 July 2007
• Docket Number: No. Al 14945.,Al 14945.
• Court: California Court of Appeals
• Parties: Daniel SHEEHAN et al., Plaintiffs and Appellants, v. The SAN FRANCISCO 49ERS, LTD., Defendant and Respondent.

62 Cal.Rptr.3d 803

153 Cal.App.4th 396

Daniel SHEEHAN et al., Plaintiffs and Appellants, v. The SAN FRANCISCO 49ERS, LTD., Defendant and Respondent.

No. Al 14945.

Court of Appeal, First District, Division 4.

July 17, 2007.

Mark A. White, Benjamin J. Riley, Chapman, Popik & White LLP, Ann Brick, Margaret C. Crosby, American Civil Liberties Union Foundation of Northern California, San Francisco, for Appellants.

Sonya D. Winner, Jonathan A. Patchen, Covington & Burling LLP, San Francisco, for Respondent.

REARDON, J.

Appellants Daniel and Kathleen Sheehan sued respondent San Francisco 49ers, Ltd. (49ers) for violation of article 1, section 1 of the California Constitution (Privacy Initiative), based on the team's implementation of a patdown policy mandated by the National Football League (NFL). They challenge the dismissal of their cause following the sustaining of the 49ers' demurrer without leave to amend. We conclude that the Sheehans cannot demonstrate that they had a reasonable expectation of privacy under the circumstances, and accordingly affirm the judgment.

I. FACTS¹

In the fall of 2005, in response to an inspection policy promulgated by the NFL,² the 49ers instituted a patdown inspection of all ticket holders attending the 49ers' home games at Monster Park as a condition for entry to the games. The patdowns were conducted by private screeners who, according to the NFL mandate, were instructed to physically inspect by "touching, patting, or lightly rubbing" all ticket holders entering the stadium. The 49ers' specific practice consisted of screeners running their hands around ticket holders' backs and down the sides of their bodies and their legs. Officers of the San Francisco Police Department stood nearby during these inspections. The Sheehans are 49ers season ticket holders and were subject to patdowns throughout the 2005 season before each game at Monster Park.

In December 2005, the Sheehans filed suit against the 49ers alleging that the 49ers breached their privacy rights, in violation of the Privacy Initiative. They sought declaratory and injunctive relief, requesting that the court (1) find the patdown policy in violation of the Privacy Initiative, and (2) enjoin the 49ers from continuing the patdown policy at home games.

The 49ers demurred, arguing that the pleaded facts did not constitute a cause of action under the Privacy Initiative. At the hearing the trial court questioned whether the relief sought by the Sheehans was ripe, since the 49ers' 2005 season was over. The Sheehans stipulated that they did buy the 49ers' 2006 season tickets and subsequently amended their complaint to include this detail. Additionally, both parties stipulated that the demurrer would apply to the amended complaint.

Following submission of supplemental briefing addressing the significance of the Sheehans' 2006 season ticket purchase relative to their Privacy Initiative cause of action, the trial court sustained the 49ers' demurrer without leave to amend, and dismissed the action with prejudice.

II. DISCUSSION

We undertake an independent review of an order sustaining a demurrer to determine if, as a matter of law, the complaint states facts sufficient to constitute a cause of action. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790, 90 Cal.Rptr.2d 598.) We accept as true the factual allegations of the pleading but not any conclusions of fact or law contained in it. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638, 29 Cal.Rptr.2d 152, 871 P.2d 204.) We may also take judicial notice of facts subject to judicial notice. (Ibid.) We will uphold the trial court's ruling if any ground for the demurrer is well taken. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, 9 Cal.Rptr.2d 92, 831 P.2d 317.)

The Sheehans urge us to reverse the judgment because the trial court misapplied the relevant law, excluding pertinent factors from its decision. We disagree. The trial court correctly ruled that the Sheehans' Privacy Initiative claim fails because they cannot show any reasonable expectation of privacy under the pertinent circumstances.

A. Hill and its Progeny

The Privacy Initiative³ provides an "inalienable right[]" in attaining and preserving one's privacy. (Cal. Const., art. I, § 1; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1,16, 26 Cal.Rptr.2d 834, 865 P.2d 633 (Hill).) In seeking to define the rights inherent in the Privacy Initiative, our Supreme Court has confirmed that it protects individuals from nongovernmental entities that may intrude on an individual's privacy. (Hill, supra, at p. 16, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The Hill court elaborated that a plaintiff asserting a Privacy Initiative claim must establish three essential elements: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) conduct on the part of the defendant constituting a serious invasion of privacy. (Id. at pp. 35-37, 39-0, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The presence or absence of a legally recognized privacy interest is a question of law for the court to decide. (Id. at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The reasonable expectation of privacy and no serious invasion elements may also be adjudicated as a matter of law where the material facts are not in dispute. (Ibid.)

In a later plurality opinion, the Supreme Court attempted to clarify⁴ that the elements articulated in Hill are "'threshold elements'" intended to "screen-out" claims that do not qualify as a significant intrusion on a privacy interest guaranteed by the Privacy Initiative. (Loder v. City of Glendale (1997) 14 Cal.4th 846, 893, 59 Cal.Rptr.2d 696, 927 P.2d 1200.) In other words, these threshold elements "permit courts to weed out claims that involve so insignificant or de minimis an intrusion on a constitutionally protected privacy interest as not even to require an explanation or justification by the defendant." (Ibid, fn. omitted)

A defendant may defeat a Privacy Initiative claim by negating one or more of the Hill criteria or by demonstrating that the invasion of privacy is justified by a countervailing interest. (Hill, supra, 7 Cal.4th at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The Hill court explained that "privacy interests [must] be specifically identified and carefully compared with competing or countervailing privacy and nonprivacy interests in a `balancing test.'" (Id. at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) An invasion of privacy may be excused if it serves an important and legitimate function of a public or private entity. (Id. at p. 38, 26 Cal.Rptr.2d 834, 865 P.2d 633.) In countering a competing interest, a plaintiff may show that there are "protective measures, safeguards, and alternatives" that the defendant can utilize which would reduce the privacy interference. (Ibid.)

The Sheehans maintain that their complaint alleges facts amounting to "a genuine and significant invasion of a protected privacy interest." They accuse the trial court of inappropriately balancing and weighing their privacy expectation against the severity of the invasion, without any evidence, "or consideration, of the justification for the conduct. As we explain, rather than engaging in a flawed weighing process, the trial court properly screened out their privacy claim. Additionally, we note that recently, and without any reference to Loder, the Supreme Court reiterated that (1) the Hill factors may be assessed as a matter of law on undisputed material facts; and (2) the balancing of competing interests only comes into play when the plaintiff has established the factors constituting an invasion of a privacy interest. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370-371, 53 Cal.Rptr.3d 513,150 P.3d 198.) We turn now to analysis of the first two elements of a Privacy Initiative claim.

B. Legally Protected Privacy Interest

The Sheehans assert that the 49ers private screeners' patdown inspections at Monster Park before 49ers' games breached their legally protected privacy interest. They claim that the inspections are intrusive and degrading to their bodies. The 49ers counter that the Sheehans have not pled a legally protected privacy interest because their allegations have "little to do with the kind of `intimate and personal decisions' typically recognized" as an actionable invasion of autonomy privacy.

There are two types of legally protected privacy interests: (1) informational privacy; and (2) autonomy privacy. (Hill, supra, 7 Cal.4th. at p. 35, 26 Cal. Rptr.2d 834, 865 P.2d 633.) Autonomy privacy safeguards "interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference." (Ibid.)

Here, the trial court correctly ruled that the Sheehans have a legally protected privacy interest in their bodies being free of unwanted patdown inspections by private security screeners. Such patdowns inherently invade one's autonomy. Nonetheless, an actionable Privacy Initiative claim requires more.

C. Reasonable Expectation of Privacy

1. Advance Notice and Voluntary Consent

The Sheehans argue that it is premature to resolve, at the pleading stage, whether they enjoyed a reasonable expectation of privacy under the circumstances. This question, they contend, involves a mixed question of law and fact. However, to reiterate, where the facts are undisputed, we may decide the issues as a matter of law. (Hill, supra, 7 Cal.4th at p. 40, 26 Cal.Rptr .2d 834, 865 P.2d 633.)

We concur with the trial court's decision that the Sheehans have no reasonable expectation of privacy because, by attending the 2005 season games, they had advance notice of the patdown policy and thereafter impliedly consented to the patdowns by voluntarily purchasing the 2006 season tickets. In assessing whether one has a reasonable expectation of privacy, we are mindful that this "is an objective entitlement founded on...