Prendergast

I dissent.

For the reasons stated in my dissent in Mulkey v. Reitman, ante, p. 545 [ 50 Cal.Rptr. 892 , 413 P.2d 836 ], I would reverse the judgment.

Respondents’ petition for a rehearing was denied June 8, 1966. White, J.,* sat in place of Mosk, J. McComb, J., and White, J.,* were of the opinion that the petition should be granted.

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.

-Defendant landlord appeals from a judgment for plaintiff tenants entered upon defendant’s motion for summary judgment on his cross-complaint for declaratory relief.

Plaintiffs Prendergast are husband and wife, respectively a Negro and a Caucasian. Prior to their marriage Mrs. Prender-gast rented from defendant an apartment in his seven-unit dwelling on an oral, month-to-month tenancy. Mr. Prendergast moved into the apartment with his wife following their marriage, and defendant thereupon purported to terminate plaintiffs ’ tenancy in the exercise of his claimed right “ (1) to select the persons with whom he would associate both in the *878 continuing relationship of landlord and tenant and in the relationship of neighbors under the same roof, and (2) to acquire, use, enjoy and dispose of his property in any manner he may choose which is not prohibited by statute, ordinance or other legislation. ’ ’

The instant action was commenced by plaintiffs to enjoin defendant from evicting them by reason of plaintiff husband’s race. In his cross-complaint defendant sought a declaration that his termination of the tenancy was not invalid, that defendant is entitled to possession of the…