Neily

MEMORANDUM *

Appellants challenge the district court’s denial of their motion for summary judgment, and simultaneous grant of summary judgment in favor of Appellees.

1. “We review both a denial and grant of summary judgment de novo.” Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1124 (9th Cir.2002) (citation omitted). We may affirm the district court on any basis supported by the record. San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1030 (9th Cir.2004).

2. The district court correctly determined that Appellants failed to state a claim under California law. Cal. Ins.Code § 10144 prohibits an insurer from refusing insurance “solely because of a physical or mental impairment, except where the refusal ... is based on sound actuarial principles or is related to actual and reasonable anticipated experience.” (emphasis added). The district court properly noted that CalPERS’ coverage decisions were based on actuarial principles.

3. The “safe harbor provision” of the ADA, 42 U.S.C. § 12201 (c) provides that the ADA:

As discussed above, the CalPERS program is not inconsistent with California law. Accordingly, the district court correctly determined that the safe…