WERDEGAR, J., Concurring. 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 rationales offered by the 49ers for deciding this case on demurrer, I agree with the majority opinion that the lower courts erred in finding that the Sheehans’ claim challenging their patdown policy fails as a matter of law. The Sheehans’ claim requires proof of “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40 [26 Cal.Rptr.2d 834, 865 P.2d 633] (Hill).) “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.” (Id. at p. 40; accord, id. at pp. 60-61 (cone. & dis. opn. of Kennard, J.).) At this stage, as the majority opinion acknowledges (maj. opn., ante, at pp. 1000-1001), the 49ers have not negated the existence of a reasonable expectation of privacy in the circumstances, an expectation that is heavily context dependent and can be fairly assessed only after the development of a factual record. Nor have they pled or proved any justification for the alleged invasion of privacy.
The barriers to resolving this case on demurrer, however, are even greater than is apparent from the majority opinion. The Sheehans have not yet been afforded the opportunity Hill guarantees them to rebut any asserted or assumed justification by raising alternatives. “Confronted 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. [Citations.] . . . [I]f defendant’s legitimate objectives can be readily accomplished by alternative means having little or no impact on privacy interests, the prospect of actionable invasion of privacy is enhanced.” (Hill, supra, 7 Cal.4th at p. 38; see id. at p. 61 (conc. & dis. opn. of Kennard, J.) [arguing plaintiffs should be afforded a fair opportunity to offer evidence of “feasible and effective alternatives having a lesser impact on privacy”]; Save Open Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235, 255 [100 Cal.Rptr.2d 725] [recognizing that even when privacy intrusion is warranted, it “ ‘should be the minimum intrusion necessary to achieve its objective’ ”].) The existence of less intrusive alternatives thus may well bear critically on proving an invasion of privacy. (Hill, at pp. 38, 52.) On demurrer, we have no evidence whether feasible, less intrusive measures exist that might achieve the 49ers’ asserted goals—goals thus far not even pled—while reducing any invasion of privacy. Because the majority opinion devotes only passing reference to the fact that the existence of alternatives may be central to proof of a privacy claim, noting instead that [1005]the 49ers do not bear an initial burden of proving they have adopted the least intrusive alternative, its discussion of the role of alternatives is incomplete and misleading.
While failing, therefore, to explain fully the barriers that exist to resolution of this case on the pleadings, the majority opinion on the other hand delves into matters that are beyond our province. The issues involved in a privacy balancing are issues of degree: just how great is the justification, how intrusive the policy, and how feasible (and intrusive) are any alternatives? In deciding this case on demurrer, it is not our role to speculate, as does the majority opinion, how on remand the ultimate weighing of these factors will play out on a fully developed record. Thus, we need not say whether the 49ers’ security interest, an interest asserted in argument but not part of the pleadings, is “substantial” or a “substantial interest.” (Maj. opn., ante, at p. 1000.)1 Nor need we opine whether the Court of Appeal “may ultimately be right.” (Maj. opn., ante, at p. 998.) Nor need we ruminate how the 49ers’ status as a private entity might or might not play into the weighing calculus on remand. (Id. at pp. 1001-1002.)
I take issue as well with the majority opinion’s dicta concerning the respective roles of the courts and private entities in evaluating measures alleged to infringe on privacy. (Maj. opn., ante, at p. 1003.) The majority opinion’s discussion suggests a level of extreme deference to the judgment of private interests, implying that any careful scrutiny of privately adopted policies would amount to impermissible micromanagement of private interactions. However, the 1972 Privacy Initiative points us in the opposite direction; it reflects a recognition that market forces alone may not be sufficient to ensure for Californians the ability to retain some semblance of privacy in the course of dealings with government, employers, businesses, and the like. (See Ballot Pamp., Gen. Elec. (Nov. 7, 1972) argument in favor of Prop. 11, p. 26 [“At present there are no effective restraints on the information activities of government and business” (italics added)]; Hill, supra, 7 Cal.4th at pp. 17-18.) The Legislature passed the Privacy Initiative, the people approved it, and we must enforce it. In doing so, I am unwilling to substitute [1006]for the constitutional right the people endorsed a reflexive faith in the governmental and private actors they deemed wanting. Courts are obligated to ensure private entities do, in fact, act responsibly and reasonably. Where such entities do so, much litigation will be avoided, and if claims nevertheless are filed, they will be denied. But in the instances where private entities do not act reasonably, the Privacy Initiative tasks us and the lower courts with enforcing a rule of reason by balancing privacy interests and competing justifications, unblinded by any deference to one side or another.
II
While the majority opinion speaks to matters we have no occasion to address, it is silent with respect to matters we are obligated to decide. Notably, the majority opinion simply assumes the Sheehans have sufficiently alleged a serious invasion of a privacy interest. But as the 49ers expressly contest this point, and as their contention, if valid, would lead to affirmance of the judgment, I do not think we are at liberty to simply assume the issue away, but instead should address it on the merits.2
On those merits, I think it clear the Sheehans have alleged an invasion of privacy of sufficient magnitude to survive demurrer and require the 49ers to answer. Significantly, the “serious invasion” prong (Hill, supra, 7 Cal.4th at p. 40) is intended only to allow 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.’ ” (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 331 [66 Cal.Rptr.2d 210, 940 P.2d 797] (plur. opn. of George, C. J.), quoting Loder v. City of Glendale (1997) 14 Cal.4th 846, 893 [59 Cal.Rptr.2d 696, 927 P.2d 1200] (lead opn. of George, C. J.); see American Academy of Pediatrics, at pp. 375-376 (conc. opn. of Kennard, J.) [endorsing same view]; In re Carmen M. (2006) 141 Cal.App.4th 478, 492, fn. 13 [46 Cal.Rptr.3d 117]; Coalition Advocating Legal Housing Options v. City of Santa Monica (2001) 88 Cal.App.4th 451, 460 [105 Cal.Rptr.2d 802].)
This is not such a claim. While some courts have concluded suspicionless, dragnet patdown searches on entering an arena are constitutional under the Fourth Amendment to the United States Constitution (e.g., Johnston v. Tampa Sports Authority (11th Cir. 2008) 530 F.3d 1320), other courts have concluded otherwise (e.g., State v. Seglen (2005) 2005 ND 124 [700 N.W.2d 702, [100770]9]; Jacobsen v. Seattle (1983) 98 Wn.2d 668 [658 P.2d 653, 656-657]; Gaioni v. Folmar (M.D.Ala. 1978) 460 F.Supp. 10, 15; Stroeber v. Commission Veteran’s Auditorium (S.D. Iowa 1977) 453 F.Supp. 926, 933; Wheaton v. Hagan (M.D.N.C. 1977) 435 F.Supp. 1134, 1147; Collier v. Miller (S.D.Tex. 1976) 414 F.Supp. 1357, 1365). From these cases and from the general frequency with which patdown policies are challenged and litigated to differing results, I think it apparent that the intrusion at issue, far from being trivial or insignificant, involves a substantial invasion of citizens’ interests and expectations of physical autonomy. (See Terry v. Ohio (1968) 392 U.S. 1, 17 [20 L.Ed.2d 889, 88 S.Ct. 1868] [public frisk conducted by police “is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment”]; United States v. Albarado (2d Cir. 1974) 495 F.2d 799, 807 [“Normally a ftisk is considered a gross invasion of one’s privacy.”].) Accordingly, I would affirmatively conclude the Sheehans have stated a prima facie case.
With these reservations, I concur in the decision to return this case to the trial court for resolution on a fully developed record.
George, C. J., and Moreno, J., concurred.
Bolstering this assertion with an allusion to the state Constitution’s safety provision (maj. opn., ante, at p. 1000; see Cal. Const., art. I, § 1 [inalienable rights include the right to “pursufej and obtain[] safety”]) is, it seems to me, particularly unnecessary. Insofar as I am aware, we have never given an interpretive gloss to this portion of the state Constitution. I find it unusual that we would invoke this clause in this context, without any discussion of its provenance or of legislative or voter intent. I find it more unusual that we would invoke the right, in effect, on behalf of third parties (other attendees) not even involved in this suit, as the Sheehans are not raising their own right to pursue safety here. I find it most unusual that we would invoke the right as a justification for conduct by an entity that is not the holder of the right, and do so sua sponte, when even the entity itself has not done so; the 49ers nowhere mention the constitutional right to pursue safety in their brief.
Contrary to the majority’s view (maj. opn., ante, at pp. 999-1000), the question falls squarely within the issues as framed by the parties, and we have not limited the issues. To quote the petitioners, “The issue presented by this case is straightforward: whether Article I, section 1 [of the California Constitution] unqualifiedly permits the San Francisco 49ers to condition entrance to Monster Park on submitting to an intrusive pat-down search.”