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Can I Sue the Police for Negligence? And More Free Legal Q&A – Free Joe 12/18/12

with 2 comments

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.

Kyle: 2 years ago I was hit by a car while riding my motorcycle. The driver of the car never stopped. I called 911 and the dispatcher said help was on the way, 15 minutes later nobody was there. I call the police station directly after that and they said someone will be there soon. Again I wait about 15 minutes, nobody shows up. I realize I am close enough to home to walk there. I drive myself to the ER, and while there I call the police for a 3rd time. I was in the hospital for about 5 hours and again no police show to make a report. My question is; can I take legal action against the police departments, and 911? As far as the driver; they never stopped and I didn’t get a plate number unfortunately.

Joe Escalante: You can, but it’s a loser. They have too many immunities and your damages are not high enough to attract a powerful lawyer that could defeat them.

Tyler: Joe, I recently moved out of a rental home in Oklahoma and I moved to Colorado. I paid a $550 security deposit upon moving in. The lease was a 30 day lease, after which it goes on month to month. When I moved out, the landlord said that it looked good (it was a very short ordeal). That was Nov. 10th. It has been over 30 days, and I have not received any kind of letter saying why they would keep the deposit (I left them my new address). I have written them a letter and sent it certified in which they signed for it. Can I sue them, and is it worth it. Would I have to sue in Oklahoma? Could I sue for more than the $550, such as 3x the amount or something? Please let me know! :)

Joe Escalante: This is actually a great question. You would have to use the small claims court in a county that had jurisdiction over the landlord. So unless he’s got other properties or ties to Colorado, you would have to sue him in Oklahoma. It would mean only going there once, however. And it sounds like you would win. The penalties for the wrongful withholding of security deposits vary from state to state, but with Google they are easy to determine. My guess is that you would only be able to recover actual damages ($500 + court costs), but I could be wrong about that. Check the state statutes in OK. I think it’s still worth it. You are preventing him from doing this to others. Good luck.

Robb: Joe,
My in-laws are considering modifying their will to stipulate specific items be given to specific heirs. I’ve heard that such would circumvent taxes and liens that an estate might be subject to. If
that’s the case, does it vary state by state (they live in North Carolina)? If not, what’s the best method of bequeathing assets to minimize exposure to either party?

Joe Escalante: Most people use strategic gifting while alive and trusts, not wills, to minimize tax consequences. And yes, the state consequences vary at least as much as each state’s tax codes. The federal consequences as you can expect are more uniform. You must have a tax pro helping you with estate planning to do it right.
For more on this, ask Gary the tax expert here on Thursdays.

LegalZoom: Ask the Tax Pro details:

Vanida: I have a question, I am American living in USA, and my husband is Canadian. He lives in Canada. I can’t find a lawyer for a divorce. One I did talk to before, I left Canada, said it would cost upfront $8000.00 and max $15000.00 to file for divorce. Because, we own a business. I have tried to find lawyer here no one will touch it. And I don’t have the money. We have been separated for 7 years. I have his cell number and facebook address. He doesn’t reply to either. I heard he sold our home, put the business in a different name. Is there anyone thing I can do to protect my self? I believe he hangs on to me for tax purpose. He gets $7000.00 a year for me.

Joe Escalante: I don’t know how those Canadians do anything, but in the USA, you would file for divorce in any county that had jurisdiction over him, i.e., where he lived last, or where he does business.
Then you try to serve him at his last known address. Then you publish it in the paper according to the court’s rules where the hearing will be.
If he doesn’t respond, the court may award you a default judgment of divorce. Good luck.

Cody: I want to start voice acting professionally; since I’m not a small business, just an individual, what would I need to do (forms, etc.) to start legally making a profit and being able to write off my expenses?

Joe Escalante: This is another tax question better asked of Gary here on Thursdays. In the initial stages of your operation, it all comes down to whether all this deducting you’re planning to do is worth it since everyone has a standard deduction they get without itemizing anything. It’s all math.

LegalZoom: Check out Ask the Tax Pro on Thursday:

Barb: My employer keeps asking me for info that is in my personal file in the HR office do i have the right to ask him why he keeps asking me for it

Joe Escalante: The 1st Amendment would allow you to say this “Wow, that’s an interesting question, why do you want to know that?” That’s what I say to everyone who asks me prying questions.

Marcos: Working from home provides great tax benefits. Mr. Escalante, what Precautions should I take when filing my taxes this year?
I am considering doing my own taxes. What do you recommend?

Joe Escalante: I recommend you ask Gary this same great question on Thursday, here, for he is a tax expert. I’m just a plain old lawyer.

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

Deborah: I am a first year business owner with my sister. We are both married. My question is this,”do we file out business taxes separate from our husband? If yes, do we also file with our husbands on our married income?”

Joe Escalante: Save this question for Gary here on Thursdays. He’s the tax expert.

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

KC: Happy Holidays LegalZoom and Joe!

To your knowledge has an anti-SLAPP motion ever been used in probate court to strike a petition for guardianship, because the petition was filed to prevent a natural parent from seeking custody in the Family courts?

Joe Escalante: I don’t know but I could see it used as threat at least in this scenario. It was used against me once just for filing a counter-claim against a frivolous lawsuit by the Daily Variety against my band The Vandals. We had to drop our counter-claim because there was a chance that we would have lost the anti-slapp motion and would have had to pay the evil bullies $50,000 for a week of their nasty work filing and prevailing on the motion.

Ed: One of my drivers was over hours this week per DOT guidelines. However, the company I contract for will not let the drivers log out for lunch (Hand-held device logs). Had he logged out for the lunch break, he wouldn’t have been over hours. What’s up with that, please?

Joe Escalante: It sounds like the damages you suffered from these shenanigans should be reimbursed by the company that doesn’t let the drivers log out for lunch. Unless this policy of theirs is legal. I don’t know enough about this type of regulation to determine that, but if you can, and it’s illegal, they owe you.

Jamie: Hi my names Matt antee I wold like to know if I can still have a DNA test dune on an child that I pay on every week becus I do not know if she is mine or not but thin I get told that I can’t have it dune on her

Joe Escalante: You need a consultation with a lawyer in your area that specializes in “Father’s Rights.” However, in short, the answer is yes. You can petition the court to determine paternity. The court will force the paternity DNA test if they honor your petition.

Matthew: I just elected to have legal on my benefits for work for next year because I need to do a will for me and my family. Do my wife and I need separate wills and will it cost a lot of money to update the will when we don’t have legal through work benefits?

Joe Escalante: A will doesn’t cost enough to worry about all that. Even Legalzoom’s super legit valid will service is only $69.00. If you buy a certain package, it includes updates. Yes, you and your wife should have separate wills.

Bob: Can you purchase and own a website url name that is registered via copyright trademark etc. by someone else, and then attempt to sell the url to them? Ex. I registered Co-CaCola someone is selling me can they do that?

Joe Escalante: No. This scam was ended a while ago when federal cyber squatting laws were passed.

Joseph: If i contacted a public official in confidentiality, ant that official went back and informed the person i was complaining about, would that public official have broken a law and do i have grounds to legal action? Thank you.

Joe Escalante: Probably not. He’s got a 1st Amendment right to tell people the conversations he has throughout his day, unless he’s signed some valid non-disclosure agreement.
Of course we can always think of scenarios where speaking up would cause harm, but this 1st Amendment defense is hard to beat. You could sue the public official for negligence perhaps, but you can see how his defense would be a hurdle.

Aisha: Hi Joe

I have drawing/designs for fashion jewelry ring and earrings and shoes. Do I have to ™, ®, © these drawings before submitting them to a company who will oem/odm it for me?

Thank you

Joe Escalante: Each creative expression you put into a tangible form automatically creates certain copyright protection. You can register these designs for more protection. Regarding trademarks, those are a bit more complicated. They identify a logo or name of a business in association with a specific product or service. Call my show this Sunday on KTLK for more info on this. We’ll put you right on the air. The info is at

Ann-Louise: a relative has a cancer and is on a live sustaining drug. he has been on this drug for many years. his insurance company is now denying him this medication. the insurance comapny also limits the pharmacys he can get the drug from.
can insurance companys deny a life sustaining medication at their will? he says that the insurance company is saying ‘billing changes’ as the reason.
is this legal?

Joe Escalante: Insurance companies think they are the law, but they are not. However, fighting this will require an attorney most likely which will be expensive. Try to connect with a legal aid group in your area and see if they have any litigation against this same company for this same issue.

Tanya: Can I sue person for not doing there correctly and cause me to spend money, adding suffering to my health issue and causing me to be homeless for a extended amount of time.

Joe Escalante: People are civilly liable for harm they cause to others if it could have been avoided. They are only liable for certain, provable, and foreseable damages, however.

Patrick: Can I be sales tax exempt if I own a vending machine company?

Joe Escalante: Sales taxes vary from state to state. Ask Gary the tax guy this question here on Thursday.

LegalZoom: Here are the details, Patrick:

Trinace: How many times can someone file a criminal show cause against you in JDRC (about an order) before you can take criminal action against them. For instance 20 show causes filed against you in 4 years time and all 20 dismissed. At what point can you take legal action against them and what kind of action do you suggest? What do you suggest asking the judge to do about it?

Joe Escalante: You might look into filing a restraining order against them for harassing you. It might not e granted but it’s a cheap and quick way to get right in front of the judge and let him know what’s going on.

Destiny: What’s the cheapest way to get a divorce if you have been separated for 8 years and have no idea where he is at?

Joe Escalante: File in any county with jurisdiction over him. That would mean he lives there, or has lived there, or does business there. The court will make you attempt to serve him notice and publish it in a newspaper. If he responds to none of this, you could be awarded a default judgment of divorce without him involved at all. It’s his tough luck. Read this book:

Everett: Is it legal to give someone permission to call, text, or forward either to someone on your behalf?

Joe Escalante: Yes.

Glenna: Florida: if you are a personal representative for an estate and money was POD’d to you upon that person’s death, is that money yours or the estates?

Joe Escalante: It’s yours. It doesn’t go through probate. It’s not part of the estate.

Sean: If you have developed a board, card or role playing game. What do you have to do to protect it before you playtest or try to sell it?

Joe Escalante: You should register it with the copyright office. If it’s complicated, like Kaboom, it may merit patent protection. For more about this stuff, call my show this Sunday on KTLK Radio and we’ll get more into it. Use the info at

Harold: Balance due four months, have sent certified return reciept mail to po box, home address and address of other property owned by them. which have not been picked up, can I legally run a legal notice in the newspaper as proof of balances due. what do i have to show as proof these have been sent, in order to follow other legal options to collect. are private messages on Facebook and/or emails legal proof of delivery. I am located in Massachusetts.
Thanks for making your time available to us

Joe Escalante: This is a lot of proof. I don’t know what you mean by a newspaper ad though.

Jen: I am the step mother of a beautiful little 3 year old boy. His biological mother has not seen him in over 2 years and has now moved out of state. What are the abandonment laws in Maine?

Joe Escalante: You can petition for sole custody based on this abandonment, but to actually get the parental rights officially terminated is tough. You almost always need them to sign off, unless you they are a serial killer.

Rhonda: Is there a way for a person to trademark their own IP? Is it all about filing paperwork or do you actually need an attorney?

Joe Escalante: You can do it yourself. However, it’s hard. I recommend using Legalzoom the first time you try it, at least.

LegalZoom: You can learn more about the process here, Rhonda:

Olin: I was appointed as my brothers personal rep. for his estate. I would like to know , he was building a new home at the time of his death, the bank had given him a construction loan, but told me that it would mature in January, would it be possible to get the loan extended so that I could possibly finish it.

Joe Escalante: You have to be appointed with authority to buy and sell property, but if you are, you can do this. It’s all in the probate papers you are going to have to file. It’s a nightmare, but you’ll get through it. Get a probate attorney. They get paid from the estate.

Michael: Can i gdt arrested for illegal window tint in nc. Limo tint

Joe Escalante: Not arrested, cited for a correctable infraction only. Live the dream.

Jesse: Hey there Joe,

I am developing mobile application for my first client. I intend to present the product to the client and should they accept, I’d like to have a contract drafted up to present to them at that time. I would essentially be providing ongoing development services for them on a 6 month basis, at which point they can end or renew the services.

Question: What kinds of content or topics should I have in this contract? Do you have any recommendations or referrals to someone that might be proficient in this topic matter that would be able to assist?



Joe Escalante: You’re going to need a lawyer in your town. To save money, take a stab and drafting the ideal contract yourself, then ask an attorney to clean it up for you. That will save you a ton. Giving you the content of that contract here on Facebook is a bit beyond the scope of what we do.

June Ann: Is it recommended to get a reverse mortage for a 66yr. old widow with a 200,000 mortgage and the house and property est. at 650,000? JAC

Joe Escalante: This is something you should discuss with your tax advisor. It’s legal to do that, but it depends on your situation. A lot of math must be done.

Gary: If my wife and I created a trust, and put our property and financial accounts into it— when we pass—— do our children still pay an inheritance tax on anything over the current limit?

Joe Escalante: This is a great question for Gary our Tax expert on Thursdays.

LegalZoom: Here are the Ask the Tax Pro details:

Fay: Please advise where I can find information with regard to probating an estate in Georgia…thanks

Joe Escalante: You should read the Nolo Press book on probating estates, and you should consult with a probate attorney in your area. They are easy to find, and they get paid out of the estate assets so you don’t have to write them a big check up front.

LegalZoom: That’s a wrap for Free Joe! Joe will be back to answer more of your legal questions on Friday. Join us then!

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December 20th, 2012 at 5:24 am