Leonard Bursten, Appellant, v. William J. Phillips, Sidney J. Adler, Bernardo M. Yorba, Donald N. Schneider, and Stephen W. Bradford, Appellees, 351 F.2d 616 (9th Cir. 1965)

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US Court of Appeals for the Ninth Circuit - 351 F.2d 616 (9th Cir. 1965)

October 6, 1965

James O. Warner, Los Angeles, Cal., for appellant.

Daniel L. Stack, Launer, Chaffee & Hanna, Fullerton, Cal., for appellees.

Before BARNES, BROWNING and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

Appeal from an order denying a preliminary injunction. It appears that the matter is moot, and that the appeal should be dismissed. Appellant asserts that the findings that the trial court made purport to dispose of the merits of the action. That is not their effect. Ordinarily, the findings made on motion for preliminary injunction, even though they relate, in whole or in part, to issues going to the merits of the case, are not determinative of those issues at trial. (See Tanner Motor Livery, Ltd. v. Avis, Inc., 9 Cir. 1963, 316 F.2d 804.) We see no reason to depart from the ordinary rule in this case. Appellant, at trial of the merits, will be entitled to have new findings made as to all material issues. There is no need to order the findings vacated.