Sheehan

I agree with my colleagues that the numerous unresolved factual issues remaining in this case preclude resolution on demurrer and require that we reverse judgment for the San Francisco 49ers (49ers) and remand for further proceedings. But both because of what it says and what it does not say in arriving at that conclusion, I cannot join the majority opinion.

I

This case comes to us on appeal from the sustaining of a demurrer without leave to amend. We may affirm 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 [ 27 Cal.Rptr.3d 661 , 110 P.3d 914 ].) Moreover, “[r]egardless of whether a request therefor[] was made, unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion.” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 322 [ 102 Cal.Rptr.2d 13 ].) Thus, the question before us is whether or not the Sheehans can conceivably make out any privacy claim. Because privacy claims typically involve a fact-dependent weighing, resolution of such claims on demurrer is rare.

*1004 Having considered the…

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 [ 40 Cal.Rptr.3d 205 , 129 P.3d 394 ].) 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.

I. Procedural History

In December 2005, plaintiffs Daniel and Kathleen Sheehan filed a complaint for injunctive and declaratory relief against the 49ers. It alleged the…