Sheehan v. SF 49ers 7/17/07 CA1/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A114945

Case Date: 10/10/2007

Preview:Filed 7/17/07

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

DANIEL SHEEHAN et al., Plaintiffs and Appellants, v. THE SAN FRANCISCO 49ERS, LTD., Defendant and Respondent. (San Francisco County Super. Ct. No. CGC05447679) A114945

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 On appeal from a judgment of dismissal following the sustaining of a demurrer without leave to amend, we assume that the facts alleged in the challenged complaint are true. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) As recently explained in Johnston v. Tampa Sports Authority (11th Cir. June 26, 2007, No. 06-14666) __ F.3d __ [2007 WL 1814197, *1] (Johnston II): "The NFL urged the pat-down policy to protect members of the public who attend NFL games. The NFL concluded that NFL stadia are attractive terrorist targets based on the publicity that would be generated by an attack at an NFL game." (Fn. omitted.) 1
2 1

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.

The plaintiff in Johnston II was a season ticket holder of the Tampa Bay Buccaneers, an NFL franchise. He brought a state court suit against the Tampa Sports Authority (TSA), claiming that the patdown policy implemented by the TSA violated his Fourth Amendment rights. The TSA removed to federal court and subsequently moved to vacate and dissolve the preliminary injunction issued by the state court prior to removal. The district court denied the TSA's motion. (Johnston v. Tampa Sports Authority (M.D.Fla. 2006) 442 F.Supp.2d 1257, 1273 (Johnston I).) During the pendency of this appeal, the Eleventh Circuit reversed. (Johnston II, supra, ___ F.3d at p. ___ [2007 WL 1814197, *4].) Throughout the instant proceeding, the Sheehans have relied heavily on the now-reversed Johnston I. 2

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.) 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.) 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.) 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,

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