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Can a Small Business Owner File for Unemployment? And More Free Legal Advice – Free Joe 10/9/12

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On Tuesdays and Fridays, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss the last Free Joe? Don’t worry. We’ve got it all right here.

Carol: If you’re a small business owner and file a 1099 and you pay taxes at the end of the year when you prepare your income tax, how is that tax money distributed? Meaning: does a part of that money go to social security, medicaid and wkmns. comp? If so. Can the business owner file for unemployment benefits, etc.

Joe Escalante: If you were paying yourself through a payroll system where you were contributing to the pot, you can take stuff out of the pot. For a more technical explanation, ask Gary the tax guy on Thursday, right here on LZ’s Facebook page.

LegalZoom: Here are the details for Ask the Tax Pro:

Linda: Hi joe could you please give me any advice on black mold in in your i really dont want two say anything to my landlord because me and my husband are in bad health and dont have the money two move.thanks

Joe Escalante: If you are a tenant, Black Mold elimination is going to be your Landlord’s responsibility. If you are a homeowner, good advice is to never mention it to anyone except the professional hired to remove it. Once the rumor goes around that your property has black mold, you are in trouble, even if it turns out not to be black mold. Like maybe it’s black gold, Texas Tea, and we’re all going to be rich and move to Beverly Hills with our grandmother mounted on a rocking chair on top of the old pick up.
However, since you are a tenant, you need only to notify your landlord in writing of the situation. If they don’t respond in a reasonable amount of time, like say a week, send them another letter telling them you are going to have the problem fixed yourself and deduct it from the rent. This is unhealthy.

Shauna: Live in Texas and Estate is in a Living Trust! Medical bills and most moneys’ are depleted from 2009 to date! Would you ever break a living trust to file chapter 7! Legal ramifications for Executor of Estate if trust not broken! Thanks!

Joe Escalante: I would have to look at the terms of the trust and examine your personal situation. Your first step is to discuss this with your tax pro. Then get a consultation with an estate planning attorney in your area. Good luck.

Ryan: Can we sue LAX?

I along with other concerned residents of El Segundo, CA attended a meeting last night at LAX about a proposed new project. The project is “West Aircraft Maintenance Area Project”. The proposed location is 1500 feet from our condo association. This new area will be open air and house up to 13 jets. A testing facility also open air will test jet engines. Now in all fairness they do plan on having some type of a 3 sided open air structure to reduce the sound decibels by 15 when testing. Below is link for the proposed project.

How loud is too loud?

The noise chart below lists average decibel levels for everyday sounds around you.


150 dB = fireworks at 3 feet

140 dB = firearms, jet engine

130 dB = jackhammer

120 dB = jet plane takeoff, siren

Extremely Loud

110 dB = maximum output of some MP3 players, model airplane, chain saw

106 dB = gas lawn mower, snow blower

100 dB = hand drill, pneumatic drill

90 dB = subway, passing motorcycle

As you can see decreasing a jet engine by 15 decibels is still in the painful category. As it is we literally have jets flying so close to our home now that we can see the people inside (which they shouldn’t do but get away with) . Now LAX wants to put a equally painful maintenance structure near our home. Who suffers from this? We do not LAX.

There were many LAX representatives at the meeting last night. All very nice but none willing to address our immediate concerns. We invited all of the LAX representatives including Herb Glasgow, Chief of Airport Planning to come visit our home and see what the airport causes. Examples of this would be noise levels so great you cant hear yourself talk at times. Constant black dust from the jets. Building deterioration caused from constant shaking and not to mention all other unseen damages (health) that have yet to be unsurfaced. Below are some easily found links related to health issues caused from airports:,28804,1929071_1929070_1947782,00.html

Our quality of life has suffered due to current conditions of LAX. Constant increasing fly overs which are reported, noise pollution and air pollution all caused from LAX. And now this new maintenance area 1500 feet from our front door.

Our condo building is located on top of a hill. We are the last building on Imperial Ave. We suffer more than any other residential structure. Our building houses 100 homeowners. We have families and want a quality of life that is suitable for our families.

Our home values are some of the lowest in the city because of LAX and now they want to put the last nail in the coffin.

Any guidance or help would be greatly appreciated.


Thank you,

Joe Escalante: People do this all the time and there is a rich case history of litigation in this area. Is it a “taking” of your property value without just compensation? Or is it a “coming to the nuisance” scenario since you moved near LAX, and it was already there, and it’s reasonable to anticipate that they will have to service aircraft in the area. They can’t cart them off to Norco for that.
To have any luck at all, your condo association needs to hire an attorney experienced in dealing with airport nuisance issues and file an injunction against the city to stop the project. Good luck.

Janice: 1. Can one get a provisional patent for an abandoned utility patent?
2. Why would an abandoned patent be referenced in a utility patent office action if the abandoned patent is ones own?

Joe Escalante: I would need to know more details so it probably can’t be settled in this forum. If a patent truly meets the legal definition of being affirmatively abandoned, I think it regains the “novelty” required for a new patent by someone else.

Paul: Hey Joe, We are experiencing issues with our cell phone provider and would like to break contract. We feel that they are not providing adequate service and would like to leave without paying the early termination fee. We have contacted their support several times and worked through the layers of management, but once we reach a high level, they promise to investigate and call back, but they never do. They also promised to send a technician to test the service in the area, and failed to do so. The only recourse I see remaining is to Arbitrate. Any advice on this issue would be appreciated. Thank you

Joe Escalante: You could take them to small claims court. However, the time you spend will probably be a bigger loss than the termination fee.

Marti: Morning! I have a legal question: I recently learned that if you have student loan debt from a school that was shut down because of fraud, you can include that debt in a bankruptcy? And, if BK was filed in the past, that could possibly be re-opened and the student loan added? Any opinions or resources on that? Thanks!

Joe Escalante: I haven’t heard that, but it makes sense. Since this seems like a new law, you better consult with a BK attorney that is up on things. Click below to find one in your Corner of the world.

LegalZoom: Here’s the link, Marti:

Christi: How do u get childsupport on someone when the only info u hve on them is thEir name????

Joe Escalante: Without situations like yours, Private Eyes would get no work. You need to hire one. Or you could start by using the services of a company like

Tom: I have a few Ideas, Inventions/innovations. I don’t have money to invest. I’m living check to check. I’d like to get these out there, but personal money is way too tight. what can I do?

Joe Escalante: There are companies that will launch an invention for you, but I don’t know if they’re crooked or not, and they make you pay them something up front. is what people say when they want you to get out of their office. However, look into it. There’s a chance it might work for one of your inventions. Here’s a Legalzoom article on its merits.

Thomas: If was to build an social media site that was just as much social networking as it is c-to-c E-commerce site should I register the business as an LLC or an S-Corp? And if I do form an LLC would I need to transition to an S or C-corp later on down the road depending the success of the venture?

Joe Escalante: These are tax questions ultimately. Legally, both entities offer similar liability protection of administered correctly. Ask your tax pro or Gary here on LZ’s Facebook page on Thursdays.

LegalZoom: Here’s the info for Ask the Tax Pro, Thomas:

Richard: I filed a 1983 civil suit in RANDOLPH Co MISSOURI and a in forma paupris because i wrote a song and posted it on the internet during my first child support trial the judge as a condition of bond made me take it of the internet…does that not violate my right to free speech and expression and consider EXcessive bail? Also my son was taken from his mother by dfs and I wasnt notified…secondly acco
rding to missouri state statute the parent is entitled to an attorney so I requested one and being disabled I couldnt afford one…judge hayes denied my councel untill I threaten to file complaint for violating my right to due process and he gave me my sons child advocate as long as non conflicting….my suit was dismissed with out prejudgudice and I need help with this case…any Ideas or advice? Thank you

Joe Escalante: Since it was dismissed without prejudice, you are free to file it again, so with what you have learned, file it again. And if it was in the best interest of the child to have your song taken of the net, the judge has a lot of latitude in that area. I don’t think you’re going to win that battle.

Janice: I paid for a patent. I received an office action from the USPTO. Paid for he atty to reply. Got another office action. Pat atty says it will cost more money and 98% of first time patent apps get denied. Should i let the patent atty reply to this office action? If the patent gets denied, should I submit another patent app? I feel like I am being ripped off here.

Joe Escalante: Patents are just extremely expensive. If your guy has a good reputation otherwise, it’s probably legit. However, if he doesn’t do a lot of patents, he could be a slime trying to make you pay his next boat payment. Check him out a little further and consult with a different patent attorney to be sure.

Tom: Hi Joe. Got a question to draw on both your entertainment law expertise and your punk cred. I’m writing a graphic novel set in the early 1980′s dealing with the punk scene. Several of the characters listen to songs from the late 70′s/early 80′s by punk bands (somewhat well-known songs, likely on larger labels/publishers). I’d like to quote lyrics from the songs as the characters are listening
to them, as they pertain to the story and the action around them.

My question: how much can I get away with under fair use before I need to get permission and/or pay the publishers/copyright-holders for usage? I’m looking at self-publishing the book with a small run of 100-500 copies. I’d like to sell to family, friends and at conventions and small stores. Am I safe to use a couple lines of lyrics? More? None-at-all? And how pricey is paying for rights to use larger chunks of lyrics likely to be? Thanks for the help, Joe!

Joe Escalante: Excellent question. Whether or not you could use others’ copyrighted material under the Fair Use Doctrine would depend on the context of its use. Just quoting would not qualify unless you were doing something like “commenting” on the song itself, not just enjoying it. It’s a grey area. Call me at KABC Saturday from 10 am to noon 800-222-KABC, or KTLK 5 pm to 7 on Sunday 877-520-1150 and we can go over your situation in detail.

LegalZoom: Attorney Joe Escalante will be back on Friday for more legal Q&A! Join us then:

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October 11th, 2012 at 5:27 am