-I dissent.
The pleadings in this case (count IV of the complaint) contained the allegation that defendant Barrington Plaza is a “publicly assisted housing accommodation” within the meaning of section 35700 of the Health and Safety Code. This being the only count of the complaint alleging that defendant was operating a “publicly assisted housing accommodation,” the court was concerned as to whether the government had partici*883pated to such an extent in its activities as to render defendant subject to restraints contained in the Fourteenth Amendment of the Constitution of the United States. (Burton v. Wilmington Parking Authority, 365 U.S. 715 [81 S.Ct. 856, 6 L.Ed.2d 45].) As to the extent of governmental activities, plaintiffs relied upon a written declaration of one Bd Cray who had made an investigation of the Barrington Plaza Corp. which indicated, among other things, that defendant corporation received a $17,000,000 loan at 5½ percent interest under the National Housing Act to construct Barrington Plaza and that the development of Barrington Plaza was part of the city’s urban development program. After some discussion concerning a stipulation as to the facts so that the court could determine its right to rule on the motion as presenting a legal rather than factual issue, the court said: “The point I am really trying to make here is that if the stipulation goes to the point that there was no tax exemption enjoyed by Barrington Plaza, that the property was not sold by the State below cost to Barrington Plaza, that the property was not acquired for purposes of construction by the State, either through the exercise of its power of eminent domain or otherwise, that there was no vacation of the public streets or laying out of other streets; that there was no preparation of the site by the government—that is, no participation in the demolition of buildings—that there was no control of rents or return on the investment, I think then we could reduce the matter to a point where the court could rule.”
Thereupon, Mr. Wirin, of counsel for plaintiffs, stated: “Your Honor, we are prepared to stipulate that the matter may be so reduced. I mean by that, the matter which your Honor had just stated, we would concede.” The stipulation was accepted by counsel for Barrington Plaza.
At a subsequent hearing, the record reveals the following:
“ The Court: . . . I had actually reserved ruling as to that latter count (IV) only because I was concerned with the question of whether the FHA financing that existed was initiated prior to the existence of any executive order or regulations of the FHA concerning discrimination; and I understand, now, that it is the position of all counsel in the case that as far as they are concerned that the FHA financing that exists preceded any such executive order and regulations pursuant thereto.
“ Am I correct ?
“Mr. Wirin: That is correct.
*884“Mr. Kresbek: Correct, Your Honor.
“Mr. Nelson: Correct, Your Honor.”
Thereupon the court granted defendant’s motion for judgment on the pleadings as to count IV.
In view of the foregoing and for the reasons stated in my dissent in Mulkey v. Reitman, ante, p. 529 [50 Cal.Rptr. 892, 413 P.2d 836], I would affirm the judgment.
McComb, J., concurred.Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.