Emergency Protective Order

Several different California Codes (codified laws covering a specific subject or area) contain the state’s statutes regarding EPO:

• Family Code at sections 6240 through 6275;
• Welfare and Institutions Code sections 213.5, 15610.07 & 15657.03; and
• Penal Code (see below).

Defenses to Emergency Protective Orders

Defenses to EPOs break down into two categories:

1. substantive defenses, meaning that the true facts or substance of the allegations leading to the order’s issuance are in dispute; and
2. procedural defenses, which call into question whether all proper and required procedures were lawfully and completely followed.

Substantive Defenses

Substantive defenses are always fact-specific and, therefore, will depend on the particular circumstances of each case. (If these very same facts are at issue in your criminal case, then they will be decided by a jury at trial.) The primary defenses of this nature are discussed below.

The Purported Victim Has Not Been Placed in Imminent Peril

The first element of the key EPO statute – Family Code section 6250 (see above) – requires that the victim be facing danger at the present time, in the very near future, or both. Family Code § 6250(a).

Therefore, an EPO can be challenged and rescinded if your attorney convinces the court that the perceived danger is too remote in the past or future, or is otherwise purely speculative.

The Alleged Violence at Issue Does Not Involve Domestic Parties

For an EPO to issue, it must concern a case involving domestic violence (“DV”), as defined by California Penal Code section 13700(b). Specifically, under that statute’s provision, by definition, a DV victim must be one of the following:

• your current or former spouse;
• someone you currently or previously lived with;
• the other parent of your biological or legally adopted child;
• someone to whom you are currently or were previously engaged; or
• someone you are currently or were previously dating.

In other words, if you and the purported victim do not have a relationship as defined by these statutes – for example, he or she was a platonic, temporary roommate at the time of the alleged incident — then the alleged abuse does not fall into the DV category. In turn, then, any EPO issued on your case must be nullified as a matter of law, which your lawyer should be able to do in an expedited manner by filing a motion.

Stalking is the Sole Exception to the Domestic Violence Requirement for an EPO to Issue

There is only one exception to this law: according to Family Code section 6274, if you are suspected or alleged to have stalked the purported victim, then the court will issue an EPO.

Penal Code section 646.91 confirms this exception, but the EPO must otherwise mirror all the same requirements as a domestic violence EPO (i.e., reasonable grounds, imminent peril, etc.).

And, of course, the allegation of stalking must fit the criteria for that crime as set forth in Penal Code section 646.9(a); namely, that you (allegedly) made a believable threat to the purported victim; you repeatedly and intentionally followed or harassed him or her over an unspecified period of time; and, as a result, he or she was reasonably placed in fear.

In other words, the crime of stalking does not necessarily require that the perpetrator and the victim have a domestic relationship as defined in the various DV statutes.

The Allegation Did Not Involve a Recent Abusive Act or Threat

An EPO will not issue – or, if it was issued, cannot be upheld – if the “imminent danger” the purported victim is facing is based on an abusive act or criminal threat that happened in the remote past, pursuant to Fam. Code § 6250(a). In other words, the peril must arise from a very recent act or threat.

So, if the purported victim called 9-1-1 and, when the police arrived, told them that you had threatened to torch her house last week, but you never took any steps to do so since then, they would have no “reasonable grounds” to call in an EPO request. (Again, this would be another issue of fact to be determined by a jury if presented at trial.)

Procedural Defenses

While many defenses to EPOs may seem – and, indeed, often are – highly technical, they are nevertheless effective and taken seriously by the court. The following examples include some, but certainly not all, of these formidable defenses:

The EPO Itself Fails to State Reasonable Grounds for Its Issuance

According to California Family Code section 6253(a), the EPO must contain a detailed statement that lays out all the allegations that amount to “reasonable grounds” or “probable cause” for the granting of the EPO request.

So, if the face of the EPO fails to state the actual grounds upon which it was issued, or if those grounds fail to arise to the level of at least “reasonable grounds”, then your attorney will be able to rush into court on an emergency/expedited basis and get it rescinded.

Similarly, Fam. Code § 6253 includes a host of other “technical” requirements as far as additional language that must appear on the face of the EPO, and, if not, the order is invalid.

FYI, the Judicial Council of California, a legislative body that sets forth policy for all California superior courts in conjunction with the California Supreme Court, actually includes language in this specific code that highly encourages both parties to the EPO to consult with an attorney. Again, this is because restraining & protective order procedures in general – and EPO procedures in particular – are extremely complicated and highly technical.

The EPO was Requested by an Ineligible Individual

As previously mentioned, and pursuant to Family Code section 6240, only certain types of law enforcement officers, officials or agents can request an EPO; namely, the following:

• LAPD officer;
• Sheriff’s deputy;
• CHP officer;
• University of California police officer;
• Cal State University police officer;
• Department of Parks and Recreation officer;
• a probation or parole officer;
• a housing authority police officer; and
• a Los Angeles Unified School District police officer.
  
  

Therefore, if a security guard at your gated community, for example, called in the EPO request and the judge nevertheless granted the request, you would have strong legal grounds to have it rescinded (which, again, you could do by having your attorney rush into court on an emergency basis, if necessary).

But even if a campus “peace officer” for a college, university or high school – whether public or private – called in an EPO request, it still wouldn’t be valid unless that particular educational institution had a “memorandum of understanding” (which is a written agreement like a contract) with the local chief of police or sheriff that allowed him or her to do so. In other words, without this “MOU” in place, California Penal Code section 6250.5 automatically nullifies such a request or order.

Next, as stated above, any authorized police or peace officer who calls in the EPO request can have the judge issue one orally over the phone, but if the officer fails to thereafter write out the order and sign it his or herself, then the EPO is void.

See Family Code section 6270.

You Were Not Served with the EPO

Assuming you otherwise could have been located through reasonable efforts, if the requesting officer failed to serve you with a copy of the EPO, you cannot be held liable for failing to comply with it.

See Family Code section 6271(a).

This is known as “void for service of process”, and is based on the common sensical notion that you shouldn’t be held responsible for adhering to the terms of the EPO if you never received it. Keep in mind, though, that no one needs to prove that you actually read it, only that you were served with it and had the opportunity to do so.

Please note, though, that even if the EPO is null and void for any one or more of the above reasons, and the officer “falsely” arrests you, or even injures you while doing so, California law prevents you from suing or pressing charges against him or her – so long as he or she was acting in “good faith” (i.e., he or she reasonably believed the EPO was valid).

See Family Code section 6272(b).

Examples of Celebrities Involved With/Affected by Emergency Protection Orders

Christina Ricci

On June 25, 2020 at around nine-thirty in the morning, LAPD patrol officers arrived at the Woodland Hills home of actress Christina Ricci (2006’s Black Snake Moan) in response to a domestic violence call. (It remains unclear whether Ricci herself called the police, or if a neighbor did so.)

Although her husband, film and TV cameraman James Heerdegen, was not arrested when police arrived, he was almost immediately subjected to an emergency protective order that temporarily prohibited him from having any contact with Ricci. See usmagazine.com.

Brad Pitt

On the evening of May 29, 2014, actor Brad Pitt and his then-wife, actress Angelina Jolie, arrived at the star-studded, glamorous world premier of Jolie’s new film Maleficent, which was being held at the famous El Capitan Theatre on Hollywood Boulevard. But as they were strolling up the red carpet, a man named Vitalli Sediuk, suddenly burst forth from the crowd, jumped the velvet rope, and lunged at Pitt. (His intentions were unclear.)

Fortunately, just as Sediuk grabbed Pitt’s arm, security guards tackled and restrained him. To their credit, Pitt and Jolie barely broke stride and continued sauntering into the theatre. However, when LAPD officers arrived minutes later, Pitt confirmed to them that he wanted an emergency protective order issued against Sediuk. The police called it in and an EPO was granted against Sediuk, who was also arrested for misdemeanor Simple Battery (California Penal Code section 242) and booked on a $20,000 bail. See eonline.com.

Gabriel Aubry (Halle Berry’s ex-husband)

On the morning of Thanksgiving Day (November 23rd), 2012, actress Halle Berry’s ex-husband, model Gabriel Aubry (who was also the father of her then-four-year-old daughter), arrived at her Hollywood Hills mansion to drop off their daughter. Berry’s then-current fiancée, French actor Olivier Martinez (2002 film Unfaithful), emerged from the house and got into a heated argument with Aubry outside wherein both men yelled and cursed each other in French.

Moments later, Berry called 9-1-1 to report that the two men were engaging in a fist fight in front of her house. Martinez, an amateur boxer, apparently beat up Aubry so severely that he had to be rushed to Cedars-Sinai Hospital’s emergency room in Beverly Hills. (Martinez arrived at the ER a little later to receive treatment for minor injuries – apparently to his hands, judging by the photos of Aubry’s injuries.)

Apparently, however, Aubry had been the alleged aggressor because he was later arrested for misdemeanor battery, then booked and released on $20,000 bail.

Despite the subsequent arrest, the police officers who arrived on scene asked Aubry if he wanted an emergency protective order issued against Martinez. Aubry responded affirmatively, and claimed that Martinez had threatened to kill him. As a result, one of the officers called in the request, which a judge granted, thereby issuing an EPO that would expire seven calendar days later (on December 3rd).

Also as a result, Berry later obtained a temporary restraining order against Aubry that required him to maintain at least a hundred-yard distance from her and their daughter. Surprisingly, only several days later, Berry and Aubry reestablished friendlier communications and, therefore, both voluntarily lifted their protection orders. See latimes.com.