FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES HUNTSMAN, 

Plaintiff-Appellant, 

 v. 

CORPORATION OF THE 

PRESIDENT OF THE CHURCH OF 

JESUS CHRIST OF LATTER-DAY 

SAINTS, 

Defendant-Appellee, 

and 

DOES, 1-10, 

Defendant.

No. 21-56056 

D.C. No. 2:21-cv02504-SVW-SK 

OPINION

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted November 15, 2022

Pasadena, California

Filed August 7, 2023
2 HUNTSMAN V. CORPORATION OF THE PRESIDENT

Before: Kim McLane Wardlaw and William A. Fletcher, 

Circuit Judges, and Edward R. Korman,* District Judge.

Opinion by Judge W. Fletcher; 

Partial Concurrence and Partial Dissent by Judge Korman 

SUMMARY**

Diversity/Fraud/ Ecclesiastical Abstention Doctrine

The panel reversed the district court’s grant of summary 

judgment in favor of the Corporation of the President of the 

Church of Jesus Christ of Latter-Day Saints in a diversity 

action brought by James Huntsman, a former member of the 

Church, alleging fraud under California state law. 

Huntsman alleged that he contributed substantial 

amounts of cash and corporate shares to the Church as 

tithes. He further alleged that he relied on false and 

misleading statements by the Church that tithing money was 

not used to finance commercial projects, when in fact the 

Church used tithing money to finance a shopping mall 

development and to bail out a troubled for-profit life 

insurance company owned by the Church. 

The panel denied the Church’s request to seal those 

portions of the opinion that include business and financial 

* The Honorable Edward R. Korman, United States District Judge for the 

Eastern District of New York, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
HUNTSMAN V. CORPORATION OF THE PRESIDENT 3

information relating to Church operations, noting that the 

opinion reveals very little of the Church’s financial 

information and some of the relevant information has 

already been publicly revealed.

The panel rejected the Church’s argument that 

Huntsman’s fraud claims are barred by the First 

Amendment. The panel held that the ecclesiastical 

abstention doctrine did not apply because the questions 

regarding the fraud claims were secular and did not implicate 

religious beliefs about tithing itself. Nor was the panel 

required to examine Huntsman’s religious beliefs about the 

appropriate use of church money.

The panel held that there was a genuine dispute of 

material fact as to whether the Church fraudulently 

misrepresented the source of money used to finance the 

shopping mall development. Based on the evidence in the 

record, including statements by church officials and in 

church publications, a reasonable juror could conclude that 

the Church knowingly misrepresented that no tithing funds 

were being or would be used to finance the shopping mall 

development and that Huntsman reasonably relied on the 

Church’s misrepresentations.

The panel agreed with the district court that the evidence 

did not provide a sufficient basis for a fraud claim with 

respect to bail-out payments to the life insurance company. 

Concurring in part and dissenting in part, District Judge 

Korman dissented from Part IV.B.1 of the majority opinion 

because in his view no reasonable juror could conclude that 

the Church fraudulently misrepresented the source of the 

money used to finance the shopping mall 

development. Summary judgment in favor of the Church 

was therefore appropriate on all claims.
4 HUNTSMAN V. CORPORATION OF THE PRESIDENT

COUNSEL

David B. Jonelis (argued), Lavely & Singer PC, Los 

Angeles, California; Jake A. Camara, Berk Brettler LLP, 

West Hollywood, California; for Plaintiff-Appellant. 

Rick Richmond (argued) and Troy S. Tessem, Larson LLP, 

Los Angeles, California, for Defendant-Appellee.

Eric S. Baxter, Laura E. Wolk, and James J. Kim, The Becket 

Fund for Religious Liberty, Washington, D.C., for Amicus 

Curiae The Becket Fund for Religious Liberty. 

OPINION

W. FLETCHER, Circuit Judge: 

James Huntsman brought suit in federal district court 

against the Corporation of the President of the Church of 

Jesus Christ of Latter-Day Saints, alleging fraud under 

California law. Huntsman is a former member of the Church 

of Jesus Christ of Latter-Day Saints. (The Corporation is the 

legal entity behind the Church of Jesus Christ of Latter-Day 

Saints. We refer to both the Corporation and the Church as 

“the Church.”) Huntsman alleged that, from 1993 until 

2015, he contributed substantial amounts of cash and 

corporate shares to the Church as tithes. He alleged that 

during at least some of that time he relied on false and 

misleading statements by the Church about its use of tithing 

money. Huntsman alleged that the Church represented that 

tithing money was not used to finance commercial projects, 

but that, in fact, the Church used tithing money to finance a 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 5

shopping mall development and to bail out a troubled forprofit life insurance company owned by the Church. 

After limited discovery, the district court granted the 

Church’s motion for summary judgment. It held that no 

reasonable juror could find that the Church had fraudulently 

misrepresented how tithing funds were used. We disagree 

with respect to the shopping mall but agree with respect to 

the life insurance company. We hold that there is evidence 

in the record from which a reasonable juror could conclude 

that the Church knowingly misrepresented that no tithing 

funds were being or would be used to finance development 

of the shopping mall and that Huntsman reasonably relied on 

the Church’s misrepresentations. 

We reverse in part, affirm in part, and remand for further 

proceedings. 

I. Background

Huntsman grew up in a prominent family of observant 

members of the Church. Huntsman’s father and grandfather 

served in high-ranking positions in church leadership. When 

he was nineteen, Huntsman accepted a two-year missionary 

assignment to Germany. During much of his adult life, 

Huntsman considered himself “to be one of the Church’s 

most devout members.” 

Church doctrine, to which Huntsman subscribed while a 

member of the Church, teaches that giving tithes is a 

commandment from God. Members contribute ten percent 

of their incomes or profits annually to the Church. Tithing 

is members’ principal financial contribution to the Church. 

Huntsman tithed for twenty-two years, from 1993 to 

2015. Huntsman stated in a declaration that the Church had 

represented in its “Sunday School manuals, conference 
6 HUNTSMAN V. CORPORATION OF THE PRESIDENT

addresses [and] statements” that tithing “was restricted” to 

non-commercial, charitable purposes and would be used to 

fund “missionary work, member indoctrination, temple 

work, and other educational and charitable activities.” It is 

undisputed that, between 2003 and 2011, Huntsman 

contributed in tithes $1,148,735 in cash, and that, between 

2007 and 2015, he contributed in tithes 1,857 shares of 

Sigma Designs stock and 28,332 shares of Huntsman 

Corporation stock. Huntsman made his last tithing 

contribution to the Church on January 9, 2015. He stopped 

tithing because, in his words, he “became disillusioned with 

the Church’s doctrines (including its support of polygamy 

and its open disdain for members of the LGBTQ 

community).” 

In 1997, the Church incorporated Ensign Peak Advisors 

(“Ensign Peak”) to serve as its primary investment vehicle 

for tithing funds received from church members. In 2003, 

the Church announced the City Creek Mall project, the 

redevelopment of a shopping mall bordering Temple Square 

in downtown Salt Lake City, across from the Church’s 

headquarters and central temple. On or before January 1, 

2004, Ensign Peak transferred $1.2 billion from Ensign Peak 

to an entity with a different name. Ensign Peak transferred 

additional, smaller amounts in 2007 and 2009. As of April 

30, 2007, before any money was disbursed for the project, 

the money transferred from Ensign Peak, combined with 

earnings on that money, totaled over $1.68 billion. 

The Church spent over $1.438 billion to develop the City 

Creek Mall project, over and above the value of the 

underlying properties. All of this development money came 

from funds transferred from Ensign Peak and later earnings 

on those funds. The City Creek Mall project was completed 

in 2012. 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 7

Beginning in 2003, Church officials and Church 

publications issued five statements about the source of the 

Church funds used to finance the City Creek Mall project. 

All five of them recited that no tithing funds would be or 

were being used to finance the City Creek Mall project. In 

his declaration in the district court, Huntsman stated: “I can 

unequivocally state that I read and/or heard each of those 

[five] statements shortly after they were published, and 

relied upon them in continuing to pay tithings to the 

Church.” 

In 2019, Huntsman learned of an IRS complaint filed by 

a former Senior Portfolio Manager at Ensign Peak, David 

Nielsen, that alleged that the Church spent tithing funds on 

commercial endeavors. Huntsman wrote in his declaration: 

“[I]t was only in 2019, after I learned of the facts contained 

in David Nielsen’s IRS whistleblower complaint, and after I 

realized for the first time in my life that the Church had lied 

to me about where my tithing donations had gone, that I 

quietly asked for my tithing donations back on December 21, 

2020.” On December 21, 2020, Huntsman wrote a letter to 

the Church asking for a return of tithing donations totaling 

$2,621,562. The Church responded in a letter refusing to 

return the donations. Huntsman wrote again, asking for a 

return of the donations. The Church again refused to return 

them. 

Huntsman then filed suit in federal district court, alleging 

fraud by the Church and seeking a return of his tithing 

donations. He also sought exemplary and punitive damages.

After limited discovery, the district court granted 

summary judgment in favor of the Church. The court first 

held that the First Amendment did not bar Huntsman’s 

claim. The court then went on to rule for the Church on the 
8 HUNTSMAN V. CORPORATION OF THE PRESIDENT

merits of Huntsman’s fraud claim. It held that while a 

reasonable juror could conclude that Huntsman had relied on 

representations by the Church, “no reasonable juror could 

find that Defendant made a misrepresentation.” We disagree 

with the district court’s holding with respect to 

misrepresentation.

II. Standard of Review

We review de novo a district court’s grant of summary 

judgment. See Delta Sav. Bank v. United States, 265 F.3d 

1017, 1021 (9th Cir. 2001). Summary judgment is 

appropriate where “the movant shows that there is no 

genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). The court must draw all inferences in the nonmovant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 255 (1986). A genuine dispute of material fact exists 

when “the evidence is such that a reasonable jury could 

return a verdict for the nonmoving party.” Id. at 248.

III. Request to Maintain Confidentiality of Financial 

Information

The Church has requested that we seal portions of our 

opinion that include “confidential and competitively 

sensitive business and financial information relating to the 

operation of the Church and its affiliated commercial 

entities.” Mot. to Seal Disposition at 4, 21-56056, Dkt. No. 

34. The Church contends that the “disclosure of such 

information would put the Church’s commercial activities at 

an unfair disadvantage and cause the Church irreparable 

harm.” Id. at 5. The Church further contends that Huntsman 

seeks to make public the Church’s financial information “for 

improper purposes,” and that disclosure of such information 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 9

“risk[s] . . . violating the Church’s First Amendment rights.” 

Id. at 6, 9.

There are no “compelling reasons” to seal the financial 

information in this opinion. Center for Auto Safety v. 

Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016). 

We reveal very little of the Church’s financial information. 

We reveal only the amount transferred from Ensign Peak to 

finance the City Creek Mall (including earnings on that 

amount), Ensign Peak’s earnings in 2003, and the amount 

spent to finance the Mall. The amount spent by the Church 

to finance the Mall has already been publicly revealed and, 

in any event, would not be protected information in the 

context of this suit. If this were a fraud case brought against 

a secular institution, there is nothing about the expenditure 

that would warrant protection. Further, as we discuss below, 

a religious institution is not protected by the First 

Amendment from a civil fraud suit. We therefore deny the 

Church’s request.

IV. Discussion

A. First Amendment

As an alternative and independent basis for affirming the 

district court, the Church argues that Huntsman’s fraud 

claim is barred by the First Amendment, under what the 

district court referred to as the “church autonomy doctrine.” 

We generally refer to the doctrine upon which the 

Church relies as the “ecclesiastical abstention doctrine.” 

Puri v. Khalsa, 844 F.3d 1152, 1162–64 (9th Cir. 2017). The 

doctrine prohibits courts from deciding “internal church 

disputes involving matters of faith, doctrine, church 

governance, and polity.” Bryce v. Episcopal Church in the 

Diocese of Colo., 289 F.3d 648, 655 (10th Cir. 2002); see 
10 HUNTSMAN V. CORPORATION OF THE PRESIDENT

also Jones v. Wolf, 443 U.S. 595, 602 (1979); Serbian E. 

Orthodox Diocese for U.S. & Can. v. Milivojevich, 426 U.S. 

696, 713 (1976). The doctrine is “a qualified limitation, 

requiring only that courts decide disputes involving religious 

organizations ‘without resolving underlying controversies 

over religious doctrine.’” Puri, 844 F.3d at 1164 (quoting 

Maktab Tarighe Oveyssi Shah Maghsoudi, Inc. v. Kianfar,

179 F.3d 1244, 1248 (9th Cir. 1999)). 

In support of its First Amendment argument, the Church 

contends that “Huntsman objects to the use of any Church 

funds for City Creek.” (Emphasis in original.) In so 

contending, the Church selectively quotes from Huntsman’s 

brief and misrepresents the nature of his claim. Huntsman 

does not object to the use of Church funds for the City Creek 

Mall project. Rather, he objects to how the Church 

represented the project would be funded. Huntsman 

contends that the Church solicited tithes from him by 

misrepresenting the purposes for which the tithes were being 

and would be used. Specifically, Huntsman contends that 

the Church denied that tithing funds would be and were used 

to pay for the City Creek Mall project when, in fact, tithing 

funds were being used for that purpose.

The ecclesiastical abstention doctrine protects First 

Amendment rights by avoiding court entanglement “in 

essentially religious controversies” or the state intervening 

on behalf of a particular religious doctrine. See Serbian E. 

Orthodox Diocese, 426 U.S. at 709. But these 

“considerations are not applicable to purely secular disputes 

between third parties and a particular defendant, albeit a 

religious affiliated organization, in which fraud . . . [is] 

alleged.” Gen. Council on Fin. & Admin. of the United 

Methodist Church v. Superior Ct. of Cal., Cnty. of San 

Diego, 439 U.S. 1355, 1373 (1978) (Rehnquist, J., in 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 11

chambers). That is because “under the cloak of religion, 

persons may [not], with impunity, commit frauds upon the 

public.” Id. (quoting Cantwell v. Connecticut, 310 U.S. 296, 

306 (1940)). 

While there is no in-circuit case directly on point, there 

is a closely analogous decision by a district court in the 

Tenth Circuit. In Gaddy v. Corp. of President of Church of 

Jesus Christ of Latter-Day Saints, 551 F. Supp. 3d 1206, 

1211, 1215 (D. Utah 2021), former members of the Church 

brought a civil RICO claim contending that the Church’s 

statements about tithing were false. The district court held 

that the First Amendment did not bar plaintiffs’ claims 

because the claims “d[id] not implicate religious principles 

of the Church or the truth of the Church’s beliefs concerning 

the doctrine of tithing . . . or [if] its members were acting in 

accord with what they perceived to be the commandments of 

their faith.” Id. at 1225–26. Like the fraud claims in Gaddy, 

the fraud claim here does not implicate religious beliefs 

about tithing itself. 

The Free Exercise Clause is violated if “the truth or 

verity of respondents’ religious doctrines or beliefs [is 

submitted] to the jury.” United States v. Ballard, 322 U.S. 

78, 86 (1944); see also United States v. Rasheed, 663 F.2d 

843, 847 (9th Cir. 1981). In the case before us, we are not 

required to rely on or interpret the Church’s religious 

teachings to determine if it misrepresented how it was using 

tithing funds. Nor are we required to examine Huntsman’s 

religious beliefs about the appropriate use of church money. 

Instead, as presented to us, the questions are secular. The 

questions are whether the Church’s statements about how it 

would use tithing funds were true, and whether Huntsman 

reasonably relied on those statements when he made tithing 
12 HUNTSMAN V. CORPORATION OF THE PRESIDENT

contributions. A court or jury can answer these questions 

based on secular evidence and analysis. See Elvig v. Calvin 

Presbyterian Church, 375 F.3d 951, 963 (9th Cir. 2004); 

Puri, 844 F.3d at 1167 (“The dispute, which ‘concern[s] the 

[d]efendants’ actions, not their beliefs,’ turns entirely on 

‘what the [defendants] did, . . . and the texts guiding [their] 

actions can be subjected to secular legal analysis.’”) 

(alterations in original) (emphasis removed) (quoting Elvig, 

375 F.3d at 963, 968)). A court or jury can look at public 

statements and relevant financial records of the Church to 

determine what church officials said about how the City 

Creek Mall project would be financed and to determine what 

funds were actually used to finance the project. A court or 

jury can assess Huntsman’s reliance by looking to the 

Church’s and Huntsman’s evidence and asking if Huntsman 

reasonably relied on the Church’s statements in deciding 

whether to tithe. 

B. Fraud Claims

Huntsman brings two fraud claims. First, he claims that 

the Church fraudulently misrepresented that tithing funds 

would not be, and were not being, used to develop the City 

Creek Mall project. Second, he claims that the Church 

fraudulently misrepresented that tithing funds would not be 

used to bail out the Beneficial Life Insurance Company. We 

address these two claims in turn.

1. City Creek Mall Project

The district court concluded that no reasonable juror 

could find that the Church fraudulently misrepresented that 

no tithing funds would be or were being used to finance the 

City Creek Mall project. 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 13

a. Evidence in the Record

Huntsman relies on five statements made by Church 

officials or in Church publications to support his claim of 

fraudulent misrepresentation by the Church. In 

chronological order, those statements are as follows. 

First, at the Church’s April 2003 General Conference, 

Church President Gordon B. Hinckley announced the City 

Creek Mall project and explained its funding sources. He 

stated: 

We feel we have a compelling responsibility 

to protect the environment of the Salt Lake 

Temple . . . The property needs very 

extensive and expensive renovation. We 

have felt it imperative to do something to 

revitalize this area. But I wish to give the 

entire Church the assurance that tithing 

funds have not and will not be used to acquire 

this property. Nor will they be used in 

developing it for commercial purposes. 

Funds for this have come and will come from 

those commercial entities owned by the 

Church. These resources, together with the 

earnings of invested reserve funds, will 

accommodate this program.

(Emphasis added.) 

Second, on October 8, 2003, another Church official 

made a statement regarding the funding of the City Creek 

Mall project. At a press conference concerning the project, 

Presiding Bishop H. David Burton stated: “None of this 
14 HUNTSMAN V. CORPORATION OF THE PRESIDENT

money comes from the tithing of our faithful members. That 

is not how we use tithing funds.” (Emphasis added.) 

Third, in December 2006, the Church’s magazine Ensign

reported:

The Church first announced three years ago 

it was planning to redevelop the downtown 

area to energize the economy of the city that 

houses its headquarters and to bolster the area 

near Temple Square. No tithing funds will be 

used in the redevelopment.

(Emphasis added.) 

Fourth, on March 27, 2007, the Church’s newspaper 

Deseret News reported: 

Money for the project is not coming from LDS 

Church members’ tithing donations. City 

Creek Center is being developed by Property 

Reserve, Inc., the Church’s real-estate 

development arm, and its money comes from 

other real-estate ventures.

(Emphasis added.)

Fifth, on October 5, 2012, Keith McMullin, a Church 

leader and head of the Church-affiliated Deseret 

Management Corporation, was quoted in The Salt Lake 

Tribune: “McMullin said not one penny of tithing goes to 

the Church’s for-profit endeavors. Specifically, the church 

has said no tithing went toward City Creek Center.” 

(Emphasis added.) 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 15

In each of these five statements, a church official or a 

church publication represented that no tithing funds were 

used to develop the City Creek Mall project. Four of the five 

statements were unqualified. Only President Hinckley’s 

2003 statement was arguably hedged. He first stated that 

“tithing funds have not and will not be used to acquire this 

property.” He then went on to state that Church funds for 

the project would come from “earnings of invested reserve 

funds.” However, President Hinckley nowhere explained 

that, as he was using the terms, “reserve funds” were “tithing 

funds.”

The record includes three sworn declarations.

Huntsman put into evidence a declaration of David 

Nielsen, dated August 15, 2021. Nielsen had worked as a 

Senior Portfolio Manager at Ensign Peak from 2010 to 2019. 

Nielsen stated:

During my employment at EPA [Ensign Peak 

Advisors], EPA’s senior leadership and other 

EPA employees referred to . . . all funds of 

EPA as “tithing” money, regardless of 

whether they were referring to principal or 

earnings on that principal. In addition, during 

my time at EPA, tithing donations from the 

Church’s members were commingled with 

earnings that EPA had made.

Nielsen described a presentation given by Ensign Peak’s 

President, Roger Clarke, at a meeting of Ensign Peak 

employees in March 2013. Clarke presented a slide giving 

examples of “withdrawals” from Ensign Peak, which 

Nielsen attached as an exhibit to his declaration. Two 
16 HUNTSMAN V. CORPORATION OF THE PRESIDENT

examples of withdrawals were “City Creek: $1,400mm over 

5 years” and “Beneficial Life: $600mm in 2009.” 

At the presentation, Nielsen asked Clarke “how the 

Church’s public statements about no tithing funds being used 

for City Creek mall or Beneficial Life could be consistent 

with” the withdrawals for those projects. According to 

Nielsen, Clarke answered that funds for the City Creek Mall 

project were transferred from Ensign Peak to Property 

Reserve in order to conceal the source of the funds: 

Mr. Clarke responded that two other Churchaffiliated entities (Property Reserve, Inc. and 

Deseret Management Corporation) had 

received from EPA the $1.4 billion and $600 

million, respectively, paid by EPA [i.e., 

Ensign Peak] for City Creek Mall and 

Beneficial Life, and essentially that, as a 

result, people would not know EPA was the 

source of this funding to City Creek mall and 

Beneficial Life. Mr. Clarke stated that it was 

important that people should not know EPA’s 

role as the source of the funds.

The Church put into evidence two declarations. The first 

was a declaration by Paul Rytting. Rytting stated that he is 

“a Director within the Finance and Records Department of 

the Church,” and that he “ha[d] worked in similar or related 

positions for over fifteen years.” Neither Rytting’s 

declaration nor anything else in the record shows that 

Rytting ever worked at or had any direct contact with Ensign 

Peak. 

Rytting stated in his declaration that all of the $1.2 

billion originally transferred from Ensign Peak to finance the 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 17

City Creek Mall project “came exclusively from earnings on 

the Church’s reserve funds invested by Ensign Peak.” 

Rytting also stated that additional amounts transferred from 

Ensign Peak to the project “came from the Church’s earnings 

on its general reserve funds from Ensign Peak’s main 

investment account.”

The second was a declaration by Roger Clarke, 

responding to Nielsen’s declaration. Clarke stated that he 

“was the President and Managing Director of Ensign Peak 

from its inception in 1997 until I retired in May 2020.”

Clarke stated, “I have knowledge of the Church policies and 

practices relating to the management of funds. I also have

knowledge concerning the financing of the City Creek 

project. I make these statements based upon institutional and 

personal knowledge.” The rest of Clarke’s declaration 

consists only of confirmations that the documents attached 

to Rytting’s declaration are “true and correct” copies of the 

originals and that Rytting’s descriptions of the documents 

are accurate.

Even though Clarke had been President and Managing 

Director of Ensign Peak from 1997 to 2020 and was 

therefore in a position to know whether Nielsen’s statements 

were true, he nowhere contradicted the statements in 

Nielsen’s declaration: (1) that Ensign Peak employees 

referred to all funds held by Ensign Peak—both principal 

and earnings on principal—as tithing funds; (2) that Clarke 

had told Nielsen that the money for the City Creek Mall 

project was transferred to Property Reserve so that “people 

would not know [Ensign Peak] was the source of this 

funding to City Creek”; and (3) that Clarke had told Nielsen 

that “it was important that people should not know [Ensign 

Peak’s] role as the source of the funds.”
18 HUNTSMAN V. CORPORATION OF THE PRESIDENT

b. City Creek Mall Fraud Claim

Under California law, “[t]he elements of fraud, which 

gives rise to the tort action of deceit, are (a) 

misrepresentation (false representation, concealment, or 

nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) 

intent to defraud, i.e., to induce reliance; (d) justifiable 

reliance; and (e) resulting damage.” Small v. Fritz 

Companies, 65 P.3d 1255, 1258 (Cal. 2003) (citation 

omitted). “Generally, the misrepresentation must be a 

material and knowingly false representation of fact.” Orient 

Handel v. U.S. Fid. & Guar. Co., 237 Cal. Rptr. 667, 693 

(Cal. Ct. App. 1987). “[P]laintiffs must show (1) that they 

actually relied on the defendant’s misrepresentations, and (2) 

that they were reasonable in doing so.” OCM Principal 

Opportunities Fund, L.P. v. CIBC World Mkts. Corp., 68 

Cal. Rptr. 3d 828, 855 (Cal. Ct. App. 2007). “Actual reliance 

occurs when a misrepresentation is ‘an immediate cause of 

[a plaintiff’s] conduct, which alters his legal relations,’ and 

when, absent such representation, ‘he would not, in all 

reasonable probability, have entered into the contract or 

other transaction.’” Engalla v. Permanente Med. Grp., Inc., 

938 P.2d 903, 919 (Cal. 1997) (quoting Spinks v. Clark, 82 

P. 45, 47 (Cal. 1905)). 

There are two questions before us. First, could a 

reasonable juror conclude that the Church fraudulently 

misrepresented that no tithing funds—neither tithing 

principal nor earnings on tithing principal—would be or 

were being used to finance the City Creek Mall project? 

Second, could a reasonable juror conclude that Huntsman 

justifiably relied on the Church’s representations? We 

answer them in turn.
HUNTSMAN V. CORPORATION OF THE PRESIDENT 19

(1) Fraudulent Misrepresentation

The Church argued below, and the district court agreed, 

that there was no misrepresentation—fraudulent or 

otherwise—because President Hinckley stated truthfully in 

April 2003 that the City Creek Mall project would be 

financed with earnings on “reserve funds.” Based on its 

conclusion that President Hinckley had made a true 

statement, the district court granted summary judgment to 

the Church.

This case cannot be so easily resolved. The question 

before the district court, and before us, is whether a 

reasonable juror could conclude that the five statements by 

church officials and in church publications amounted to 

fraudulent misrepresentation by the Church. See Small, 65 

P.3d at 1258. Huntsman contends that a reasonable juror 

could conclude from the five statements that the Church 

fraudulently misrepresented that neither tithing principal nor 

earnings on tithing principal were being or would be used to 

finance the City Creek Mall project. We agree.

For the reasons that follow, we hold that a reasonable 

juror could conclude that the Church misrepresented the 

source of the funds used to finance the City Creek Mall 

project. 

First, church officials and church publications made four 

unqualified statements that no tithing funds were being or 

would be used to finance the City Creek Mall project. None 

of the four statements distinguished between tithing 

principal and earnings on tithing principal. None of them 

referred to a “reserve fund” or earnings on “reserve funds.” 
20 HUNTSMAN V. CORPORATION OF THE PRESIDENT

Second, President Hinckley denied that “tithing funds” 

would be used to finance the City Creek Mall project. He 

stated in relevant part:

I wish to give the entire Church the 

assurance that tithing funds have not been 

used to acquire [the City Creek] property. 

Nor will they be used in developing it for 

commercial purposes.

Funds for this have come and will come 

from those commercial entities owned by the 

Church. These resources, together with the 

earnings of invested reserve funds, will 

accommodate this program.

(Emphasis added.) 

President Hinckley first stated that “tithing funds” had 

not been used to acquire, and would not be used to develop, 

the City Creek Mall. He did not define “tithing funds.” That 

is, he did not tell his listeners that, in denying that “tithing 

funds” would be used, he was denying only that tithing 

principal would be used. President Hinckley then stated that 

earnings on invested “reserve funds” would be used to 

develop the project. He did not define “reserve funds.”

President Hinckley could have explained that, as he was 

using the terms, “reserve funds” were “tithing funds.” If he 

had said that, his audience would have understood that 

earnings on “tithing funds” would be used to develop the 

City Creek Mall project. But President Hinckley did not say 

that. Instead, having stated that “tithing funds” would not be

used to develop the project, President Hinckely then used an 

entirely different and undefined term, saying that earnings 

on “reserve funds” would be used. 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 21

The Church argues that President Hinckley did not 

intend to mislead his audience, and that the meaning of 

“reserve funds,” as President Hinckley used the term, would 

have been clear to his audience. In support of its argument, 

the Church points to statements made by President Hinckley 

in 1991 and 1995, twelve and eight years earlier, 

respectively. The Church contends that President Hinckley 

had made clear in these statements that “reserve funds” were 

“tithing funds.” We take the two statements in turn.

At the Church’s 1991 General Conference, twelve years 

before the April 2003 statement at issue, President Hinckley 

answered the question, “What about the management of 

Church finances? He answered: 

The financial program of the Church—

both income and disbursements—is found in 

sections 119 and 120 of the Doctrine and 

Covenants. Except for fast offerings and 

missionary funds, two statements found in 

these brief revelations constitute the Lord’s 

law of finance and the management program 

of the fiscal affairs of the Church.

Section 119 simply states that all 

members “shall pay one-tenth of all their 

interest [that which is income] annually; and 

this shall be a standing law unto them forever 

. . . saith the Lord.” (D&C 119.4.)

Then, concerning the disbursement of the 

money which comes from the tithing, the 

Lord has said: “Verily, thus saith the Lord, . . 

. it shall be disposed of by a council, 

composed of the First Presidency of my 

Church and of the bishop and his council, and 
22 HUNTSMAN V. CORPORATION OF THE PRESIDENT

by my high council; and by mine own voice 

unto them, saith the Lord.” (D&C 120.)

These eighteen men—the Presidency, the 

Twelve, and Presiding Bishopric—constitute 

the Council on the Disposition of the Tithes. 

What might be regarded as executive 

committees of this larger council include the 

Budget Committee and the Appropriations 

Committee. The expenditure of all Church 

funds comes under the purview of these 

bodies.

In the financial operations of the Church, 

we have observed two basic and fixed 

principles: One, the Church will live within 

its means. It will not spend more than it 

receives. Two, a fixed percentage of the 

income will be set aside to build reserves 

against what might be called a possible 

“rainy day.”

(Emphases added.) 

In its brief to us, the Church argues: 

President Hinckley’s 1991 statement 

explains that the ‘financial program of the 

Church—both income and disbursement—is 

found in Sections 119 and 120 of the Doctrine 

and Covenants,” which is Church scripture. 

Explaining that Section 119 concerns tithing, 

President Hinckley then states that the 

Church will not spend more than it “receives” 

and will set aside a fixed percentage “to build 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 23

reserves.” Clearly, President Hinckely meant 

that the reserves would come from tithing.

Our dissenting colleague agrees. He argues: 

[C]ontrary to the majority’s assertion, 

Hinckley did make clear that “income” in his 

1991 statement included 

tithing. Specifically, Hinckley said: “The 

financial program of the Church—both 

income and disbursement—is found in 

sections 119 and 120 of the Doctrine and 

Covenants.” Hinckley then explained that 

section 119 refers to tithing. Because this 

statement roots the Church’s “income and 

disbursement” in section 119, which refers to 

tithing, it is clear that income for the Church 

includes tithing. This renders irrelevant the 

majority’s assertion that “[i]ncome is usually 

used as a secular term.”

Dissenting Op. at 35–36. 

In his 1991 statement, President Hinckley referred to 

“income” three times, never defining the term. See the 

italicized language, supra. President Hinckley first 

generally referred to “[t]he financial program of the 

Church—both income and disbursements.” He then said 

that Church members shall pay ten percent of “their interest 

[that which is income] annually.” In this passage, President 

Hinckley referred to members’ “income,” saying that 

members would pay tithes based on that income. Finally, he 

said the Church will live within its means, not spending more 

than it receives, and that a “fixed percentage” of the 
24 HUNTSMAN V. CORPORATION OF THE PRESIDENT

Church’s “income will be set aside to build reserves.” In this 

passage, in saying that the Church would “live within its 

means, not spend[ing] more than it receives,” President 

Hinckley refers to the Church’s “income” rather than its 

members’ “income.” 

Income is usually used as a secular term. In the case of 

an individual, “income” can include such things as a salary 

or bonus from employment, or dividends or interest from 

securities. In the case of a religious organization, “income” 

can include income from real property, businesses, or other 

investments. The Church has significant commercial assets 

and income from those assets. Indeed, President Hinckley 

referred to the Church’s commercial assets in his 2003 

statement, writing, “Funds for [financing City Creek Mall] 

have come and will come from those commercial entities 

owned by the Church.” “Income” can, of course, also 

include money given to a religious organization, though such 

money is often referred to as “offerings,” “contributions,” or 

“tithing.” But nothing in President Hinckley’s 1991 

statement defines “income” of the Church as tithing 

contributions to the Church.

At the Church’s 1995 General Conference, eight years 

before his April 2003 statement, President Hinckley stated: 

Not only are we determined to live within the 

means of the Church, but each year we put 

into the reserves of the Church a portion of 

our annual budget. . . . Should there come a 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 25

time of economic distress, we would hope to 

have the means to weather the storm.

(Emphasis added.) President Hinckley neither defined 

“annual budget” nor specified the source of the funds in the 

annual budget. 

The Church makes no specific argument in its brief to us 

with respect to President Hinckley’s 1995 statement. It 

writes only, “President Hinckley explained that the Church 

would fund City Creek, in part, from earnings on reserves, 

and in 1991 and 1995, President Hinckley explained where 

those reserves came from.” Our dissenting colleague 

contends that the “context” of President Hinckley’s 1995 

statement makes clear “that the Church’s reserves derived 

from tithing.” Dissenting Op. at 36. But our colleague is 

unable to point to any actual statement — by President 

Hinckley or anyone else — that the “portion of the annual 

budget” put into “the reserves of the Church” came from 

tithing. 

Even if true, President Hinckley’s 2003 statement about 

“reserve funds” is not necessarily a defense to Huntsman’s 

fraud claim. First, if President Hinckley had stated in 

English that “tithing funds” would not be used to finance the 

project, and had then added in a foreign language unknown 

to his audience that the financing came from earnings on 

tithing funds, the added statement would not defeat a fraud 

claim. Nor would it defeat a fraud claim if President 

Hinckley spoke entirely in English, first saying in plain 

language that “tithing funds” would not be used, but then, 

using undefined or specialized terms that his audience would 

not understand, saying that some other money (“earnings on 

reserve funds”) would be used. In either event, the audience 

would have heard, stated in plain English, that tithing funds 
26 HUNTSMAN V. CORPORATION OF THE PRESIDENT

would not be used to finance the project, and then would 

have heard, in opaque language, that earnings on some other 

kind of funds would be used. Second, when he spoke in 

2003, President Hinckley made no reference to his 1991 and 

1995 statements. Even if an astute listener could have 

understood the 1991 and 1995 statements as the Church 

would have us understand them, the listener would have to 

have had those statements in mind in order to understand the 

2003 statement as the Church would have us understand it. 

Third, there is evidence in the record indicating that the 

term “tithing funds,” in common usage within the Church, 

refers both to tithing principal and to earnings on tithing 

principal. As noted above, Nielsen stated in his declaration: 

During my employment at EPA [Ensign Peak 

Advisors], EPA’s senior leadership and other 

EPA employees referred to . . . all funds of 

EPA as “tithing” money, regardless of 

whether they were referring to principal or 

earnings on that principal. 

Given this common usage, a reasonable juror could conclude 

that President Hinckley intended his audience to understand, 

when he said that no “tithing funds” would be used to fund 

the City Creek Mall project, that neither tithing funds 

principal nor earnings on tithing principal would be used.

Fourth, and perhaps most tellingly, Nielsen recounted in 

his affidavit that he questioned Roger Clarke, President of 

Ensign Peak, about the use of Ensign Peak funds to finance 

the City Creek Mall project. Referring to the transfer of 

funds from Ensign Peak to Property Reserve on or before 

January 1, 2004, for use on the City Creek Mall project, 

Clarke told Nielsen that the funds had been transferred to 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 27

Property Reserve in order to conceal their source. According 

to Nielsen, Clarke told him that the funds had been 

transferring in this manner so that “people would not know 

that [Ensign Peak] was the source of this funding to City 

Creek Mall.” Clarke told Nielsen “that it was important that 

people should not know [Ensign Peak’s] role as the source 

of the funds.”

In sum, a reasonable juror could rely on the following 

evidence to conclude that the Church fraudulently 

misrepresented that neither tithing principal nor earnings on 

tithing principal would be or were being used to develop the 

City Creek Mall project: (1) the four unqualified statements 

by church officials and in church publications that tithing 

funds were not used to finance the City Creek Mall project; 

(2) the statement by President Hinckley, in which he denied 

that “tithing funds” would be used to develop the City Creek 

Mall project and in which he failed to tell his listeners that, 

as he was using the terms, “reserve funds” were “tithing 

funds”; (3) common usage in the Church under which the 

term “tithing funds” includes both tithing principal and 

earnings on tithing principal; and (4) Clarke’s statement that 

money was transferred from Ensign Peak to Property 

Reserve in order to conceal the source of the funds used to 

develop the City Creek Mall project. 

We therefore hold, contrary to the district court, that 

there is a genuine dispute of material fact as to whether the 

Church fraudulently misrepresented the source of the money 

used to finance the City Creek Mall project. 
28 HUNTSMAN V. CORPORATION OF THE PRESIDENT

(2) Reliance

Misrepresentation and reliance are separate elements. 

The district court held that a reasonable juror could conclude 

that Huntsman relied on misrepresentations by the Church.

The Church argues that Huntsman understood Church 

officials and Church publications to say that earnings on 

tithing principal would be used to finance the City Creek 

Mall project. Our dissenting colleague points out that 

Huntsman is a sophisticated man with deep and longstanding 

family ties to the Church. In the view of our colleague, 

“Huntsman should have understood that ‘earnings of 

invested reserve funds’ referred to earnings on tithing 

principle.” Dissenting Op. at 40–41. 

The district court pointed out that Huntsman declared 

that “he read and/or heard each of the [five statements by the 

Church] shortly after they were published,” and that he relied 

on them in continuing to donate tithes to the Church. 

Huntsman declared that he did not understand President 

Hinckley to say that earnings on tithing funds would be used 

to finance the project. 

In light of Huntsman’s declaration that he believed, 

based on the five statements, that no tithing principal or 

earnings on principal were or would be used to finance the 

City Creek Mall project, the district court denied summary 

judgment. It held that Huntsman’s credibility could not be 

determined as a matter of law. See Earp v. Ornoski, 431 F.3d 

1158, 1170 (9th Cir. 2005) (“Summary judgment is an 

inappropriate vehicle for resolving claims that depend on 

credibility determinations.”). We agree. 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 29

2. Beneficial Life Insurance Company

The district court granted summary judgment to the 

Church on Huntsman’s fraud claim with respect to bail-out 

payments to the Beneficial Life Insurance Company. The 

district court held that there was no actionable statement in 

the record by a representative of the Church with respect to 

Beneficial Life.

Huntsman points to “Sunday School manuals” and 

general church teachings about the use of tithing money. He 

also points to one brief statement, made in the context of a 

statement about the City Creek Mall project, to the effect that 

tithing money is not used for commercial projects. There is 

no statement in the record by any Church official denying 

that tithing funds—either tithing principal or earnings on 

tithing principal—would be or were used to finance the bail 

out of Beneficial Life. 

We agree with the district court that this evidence does 

not provide a sufficient basis for a fraud claim with respect 

to the financing of Beneficial Life. 

Conclusion

We reverse the judgment of the district court with respect 

to Huntsman’s fraud claim based on the Church’s 

representations as to the use of funds to finance the City 

Creek Mall project. We affirm the judgment of the district 

court with respect to Huntsman’s fraud claim as to the use of 

funds to bail out the Beneficial Life Insurance Company. 

We reverse and remand for further proceedings consistent 

with this opinion.

Affirmed in part, Reversed in part, and Remanded. 

Each side shall bear its own costs on appeal. 
30 HUNTSMAN V. CORPORATION OF THE PRESIDENT

KORMAN, District Judge, concurring in part and dissenting 

in part: 

The Church of Jesus Christ of Latter-day Saints traces its 

roots to Joseph Smith, who, in 1830, published the Book of 

Mormon and organized the church in New York.1 Smith 

faced persecution even before the church was organized, 

which continued in the decades to follow, and led to several 

forced migrations of members of the church. Church 

members ultimately fled from Ohio to Missouri, where they 

were also persecuted and driven out of the state by 1839. 

Smith and church members built a new city in Illinois, and 

in 1844, Smith and his brother were imprisoned in a nearby 

jail and murdered by a mob. 

Fleeing persecution, church members traveled to Utah, 

first arriving in 1847. Brigham Young, the successor to 

Smith, served as the president of the church until his death 

in 1877. In Utah, the church used contributions from 

members to build its temple in Salt Lake City, and Young 

established commercial enterprises, also financed by 

contributions to the church, intending to help church 

members become self-sufficient. Indeed, in 1868, the 

church established a general goods store called Zion 

Cooperative Mercantile Institution (ZCMI), which was 

1 The history is largely based on information in the record and 

information in the Encyclopedia Britannica. See J. Gordon Melton, 

Church of Jesus Christ of Latter-day Saints, Encyclopedia Britannica 

(last updated May 22, 2023), https://www.britannica.com/topic/Churchof-Jesus-Christ-of-Latter-day-Saints; see also Brett G. Scharffs, The 

Journey from Persecution to Inclusion: A Case Study of the Church of 

Jesus Christ of Latter-Day Saints in America, 97 Notre Dame L. Rev. 

Reflection 264, 266-69 (2022). 
 HUNTSMAN V. CORPORATION OF THE PRESIDENT 31

eventually transformed from 2006 to 2012 into the City 

Creek Center. 

Since its early days in Utah, the church has grown 

substantially. As Church President Gordon Hinckley said in 

his 1991 “State of the Church” remarks, when he was the 

First Counselor in the First Presidency, the church was then 

“growing consistently and remarkably.” At the same time, 

the church retained its commitment to “live within its 

means,” always cognizant of the “dark times of the Great 

Depression” and the possibility of returning to such 

circumstances. 

Subsequently, in 1995 remarks, Hinckley said the church 

was “in good condition,” “healthy,” and “growing in 

numbers.” He explained that the church is “expanding 

geographically over the world,” and “adding a million new 

members each three and a-half years.” Indeed, according to 

a recent Wall Street Journal report, the church “has 

announced 133 new temples” in the past five years, which 

“would give the church 315 worldwide, up from 174 

operating now.”2 The Wall Street Journal further reports 

that the church’s “$100 billion investment portfolio helps 

ensure it can keep expanding globally” in light of the fact 

that its membership growth “is coming from developing 

countries that don’t generate as much tithing revenue.”3 

This extraordinary growth, in the face of the history 

described above, is a credit to the successful governance of 

the church by its leadership. 

2 Jonathan Weil, Inside the Mormon Church’s Globe-Spanning RealEstate Empire (June 29, 2023), https://www.wsj.com/articles/mormonchurch-temple-spending-spree-utah-e167977f. 

3 Id. 
32 HUNTSMAN V. CORPORATION OF THE PRESIDENT

Nonetheless, plaintiff James Huntsman accuses the 

Corporation of the President of the Church of Jesus Christ of 

Latter-Day Saints (the “Church”) of “secretly lin[ing] its 

own pockets by using the funds to develop a multi-billion 

dollar commercial real estate and insurance empire that ha[s] 

nothing to do with charity.” As a preliminary matter, 

Huntsman’s claim falsely conjures an image of Church 

leaders enriching themselves at the expense of the Church. 

Such a proposition is entirely unsupported. Even to the 

extent the Church used contributions on commercial 

enterprises, such as the City Creek Mall, there is no 

suggestion that those endeavors did not in turn benefit the 

Church, including, as Hinckley described, by “protect[ing] 

the environment of the Salt Lake Temple.” 

Huntsman claims that the Church “lied about the 

intended use of [the tithing] funds,” and specifically 

“misrepresented that tithing funds would not be used for the 

commercial development of the City Creek Mall.” In his 

complaint, Huntsman points to five specific statements by 

the Church, allegedly stating “that tithing funds would not 

be used to fund any commercial profit ventures.” Huntsman 

claims that such statements “were false, and Defendant[] 

knew them to be false” because defendant “did not intend to 

use Plaintiff’s tithing funds solely for charitable and 

religious purposes,” and in fact, defendant intended to use 

the funds for “purely commercial endeavors, including the 

construction of the City Creek Mall.” 

Today the majority concludes that the Church is not 

entitled to summary judgment on Huntsman’s claim that the 

Church fraudulently misrepresented whether tithing 

contributions would be used to fund the development of the 

City Creek Mall. I cannot agree. The district judge correctly 

concluded that no reasonable juror could find that Hinckley 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 33

misrepresented the source of the funding for the project in 

2003. Summary judgment in favor of the Church is therefore 

appropriate on all claims.4 

To succeed on a claim for fraud, California law5 requires, 

inter alia, a “misrepresentation (false representation, 

concealment, or nondisclosure)” with “knowledge of 

falsity.” Small v. Fritz Companies, Inc., 65 P.3d 1255, 1258 

(Cal. 2003). In other words, there must generally be “a 

material and knowingly false representation of fact.” Orient 

Handel v. United States Fid. & Guar. Co., 237 Cal. Rptr. 

667, 672 (Ct. App. 1987). Here, whether Hinckley intended 

to make such a false statement must be assessed in the 

context of what he would have expected Huntsman—the 

plaintiff—to understand. Simply, no reasonable juror could 

conclude that Hinckley intended to make a knowingly false 

representation to Huntsman, particularly because of 

Hinckley’s knowledge of Huntsman’s sophistication and 

substantial familiarity with the Church, a dispositive fact that 

is discussed further below. 

The case hinges on the first of the allegedly fraudulent 

statements that Huntsman points to: a statement by Hinckley 

4 Because I agree with the majority that plaintiff does not succeed on his 

claim related to the Beneficial Life Insurance Company, I concur as to 

the majority’s opinion on that claim (Part IV.B.2), and I dissent as to the 

City Creek Mall project claim (Part IV.B.1). 

5 Why California law applies in this case is perplexing. The Church, 

according to the complaint, “is a corporation duly organized and 

operating pursuant to the laws of the State of Utah.” And Huntsman only 

moved from Utah to California on October 31, 2020. His complaint was 

filed less than five months later. But I apply California law nonetheless, 

as the majority does, because the parties have proceeded under California 

law. See Montana Power Co. v. Pub. Util. Dist. No. 2 of Grant Cnty., 

587 F.2d 1019, 1022 n.1 (9th Cir. 1978). 
34 HUNTSMAN V. CORPORATION OF THE PRESIDENT

at the Church’s April 2003 General Conference. The 

General Conference is a “semi-annual event consisting of 

worship services and messages from Church leaders 

broadcast to the worldwide Church.” The issue is whether 

Hinckley accurately represented the source of funding for 

the City Creek Mall project when he discussed the Church’s 

“decision to purchase the shopping mall property 

immediately to the south of Temple Square.” Hinckley 

explained of the project: 

We feel we have a compelling responsibility 

to protect the environment of the Salt Lake 

Temple. The Church owns most of the 

ground on which this mall stands. The 

owners of the buildings have expressed a 

desire to sell. The property needs very 

extensive and expensive renovation. We have 

felt it imperative to do something to revitalize 

this area.

He then explained the City Creek project’s funding sources: 

But I wish to give the entire Church the 

assurance that tithing funds have not and will 

not be used to acquire this property. Nor will 

they be used in developing it for commercial 

purposes. Funds for this have come and will 

come from those commercial entities owned 

by the Church. These resources, together 

with the earnings of invested reserve funds, 

will accommodate this program.

In that statement, Hinckley did represent “that tithing 

funds have not and will not be used to acquire this property,” 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 35

but he then qualified that representation by explaining: 

“These resources, together with the earnings of invested 

reserve funds, will accommodate this program.” (Emphasis 

added). To be clear, as the district judge found, “the earnings 

of invested reserve funds were the earnings of invested 

tithing funds.” Hinckley thus clarified that the Church 

would use earnings from invested reserve tithing funds.

Indeed, statements by Hinckley in 1991 and 1995 made 

clear that the Church’s “reserves” referred to tithing funds, 

and thus earnings on reserves would refer to the earnings on 

tithing funds. In 1991, Hinckley said the church would set 

aside a portion of the contributions it received in tithes. “In 

the financial operations of the Church,” he said, “we have 

observed two basic and fixed principles: One, the Church

will live within its means. It will not spend more than it 

receives. Two, a fixed percentage of income will be set aside 

to build reserves against what might be called a possible 

‘rainy day.’” In 1995, Hinckley reiterated that message: 

“Not only are we determined to live within the means of the 

Church, but each year we put into the reserves of the Church 

a portion of our annual budget.” In context, these statements 

show that the Church’s “reserves” encompass tithing money. 

The majority’s attempt to explain away the 1991 and 

1995 statements is unpersuasive. First, contrary to the 

majority’s assertion, Hinckley did make clear that “income” 

in his 1991 statement included tithing. Specifically, 

Hinckley said: “The financial program of the Church—both 

income and disbursement—is found in sections 119 and 120 

of the Doctrine and Covenants.” Hinckley then explained 

that section 119 refers to tithing. Because this statement 

roots the Church’s “income and disbursement” in section 

119, which refers to tithing, it is clear that income for the 

Church includes tithing. This renders irrelevant the 
36 HUNTSMAN V. CORPORATION OF THE PRESIDENT

majority’s assertion that “[i]ncome is usually used as a 

secular term.” Maj. Op. at 24. 

Moreover, the 1991 statement is at odds with the 

majority’s assessment that “[t]he Church has significant 

commercial assets and income from those assets.” Maj. Op. 

at 24. Indeed, Hinckley stated in 1991 that the Church’s 

income from its commercial assets was “relatively small” 

and that its other assets generally did not generate income. 

With respect to what Hinckley described as “substantial 

assets,” he explained that “these are money-consuming 

assets and not money-producing assets”6 as they are largely 

in particular types of real estate such as meeting facilities and 

schools, and in welfare projects, and the like. And with 

respect to the Church’s commercial assets, Hinckley 

specified: “We have a few income-producing business 

properties, but the return from these would keep the Church 

going only for a very brief time.” He then returned to 

discussing tithing. Therefore, from the context of the 1991 

statement, Hinckley’s reference to “build[ing] reserves” 

from “income” meant that the Church would build reserves 

from, at least in part, tithing funds. 

Second, the context of the 1995 statement is also clear 

that the Church’s reserves derived from tithing. Hinckley 

discussed tithing in the immediately preceding paragraphs to 

the statement that “we put into the reserves of the Church a 

portion of our annual budget.” Hinckley explained that 

6 One example of such a “money-consuming” asset is the Manhattan 

New York Temple, undoubtedly worth millions of dollars, located across 

from Lincoln Center on Columbus Avenue. See Manhattan New York 

Temple, The Church of Jesus Christ of Latter-day Saints (last visited July 

20, 2023), 

https://www.churchofjesuschrist.org/temples/details/manhattan-newyork-temple?lang=eng. 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 37

“[t]he Church has been living within its means, and it will 

continue to do so. I am profoundly grateful for the law of 

tithing.” He then discussed the commandment to tithe and 

that the Church has “a compelling trust to use them carefully 

and wisely.” Hinckley then referred back to the beginning 

of his discussion of tithing when discussing the reserves by 

saying: “Not only are we determined to live within the means

of the Church, but each year we put into the reserves of the 

Church a portion of our annual budget.” (Emphasis added). 

Thus, even if Hinckley did not expressly state that tithing 

funds would be placed into reserves, the context of his 

reference to the annual budget surrounded by a discussion of 

tithing makes it obvious they would be. 

These 1991 and 1995 statements must inform our 

understanding of Hinckley’s 2003 statement that “the 

earnings of invested reserve funds” would be used for the 

City Creek project. Indeed, they show that “reserve funds” 

refer to tithing funds. In other words, in his 2003 statement, 

Hinckley said that the Church would use earnings on 

tithings, not tithing principal, to fund the project. And that 

was true. The financial records of Ensign Peak Advisors 

(“Ensign Peak”), which the Church incorporated in 1997 to

serve as the “primary investment vehicle for the Church’s 

reserve funds in stocks, bonds, and securities,” confirm this 

fact. In 2003 alone, as the district judge noted, Ensign Peak 

had enough earnings on invested reserves to fund the 

allocation of money to the fund designated for the City Creek 

project. To be more precise, the record reflects that Ensign 

Peak had earnings of over $3.9 billion in 2003. Then, on 

January 1, 2004, Ensign Peak earmarked $1.2 billion of its 

funds to an internal account for the City Creek project. 

Withdrawing $1.2 billion from an account that just earned 
38 HUNTSMAN V. CORPORATION OF THE PRESIDENT

$3.9 billion cannot mean that Ensign Peak cut into the 

principal instead of the earnings.

The majority also argues that “there is evidence in the 

record indicating that the term ‘tithing funds,’ in common 

usage within the Church refers both to tithing principal and 

to earnings on tithing principal,” and thus Hinckley intended 

his audience to understand that neither tithing principal nor 

earnings would be used. Maj. Op. at 26. But the majority 

places too much weight on the declaration of David Nielsen, 

who worked as a Senior Portfolio Manager at Ensign Peak 

from 2010 until 2019, because, as the district judge pointed 

out, Nielsen did not work at Ensign Peak at the time that the 

funds were allocated for the City Creek project, and even if 

Nielsen’s statements could establish common usage at 

Ensign Peak during his employment there, it is a stretch to 

say that he could establish the common usage throughout the 

Church as a whole. Moreover, even this “common usage” 

would not change the conclusion that “the earnings of 

invested reserve funds were the earnings of invested tithing 

funds,” and Hinckley therefore effectively clarified that the 

Church would use earnings from invested reserve tithing 

funds.

The subsequent statements made by the Church about the 

City Creek project also do not permit a fraud claim because 

they do not conflict with Hinckley’s 2003 statement. The 

district judge rightly found that “[n]one of the four 

statements are inconsistent with Hinckley’s statement.” 

Thus, they do not change the fact that Hinckley said that 

“earnings of invested reserve funds” would be used. Any 

subsequent statement would have been understood in the 

context of that earlier statement. 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 39

The Church therefore did not make a false 

representation, and our analysis of plaintiff’s fraud claim 

should end here. Indeed, as the district judge found on these 

facts: “a reasonable juror could only conclude that 

Defendant used ‘the earnings of invested reserve funds’ to 

fund the City Creek project—i.e., Defendant did exactly 

what Hinckley said Defendant would do.” 

Nonetheless, the majority takes a further journey to find 

a false representation, contending that “[e]ven if true, 

President Hinckley’s statement about ‘reserve funds’ is not 

necessarily a defense to Huntsman’s fraud claim.” Maj. Op. 

at 25. The majority suggests that Hinckley used an 

“undefined or specialized terms that his audience would not 

understand.” Maj. Op. at 25. I agree in principle that adding 

a caveat in a foreign language or a specialized term that 

could not be understood would not defeat a fraud claim. But 

in this case, there is no evidence that Hinckley’s statements 

would have been the equivalent of a foreign language to this 

specific plaintiff. Indeed, this is not a class action; 

Hinckley’s audience for purposes of this action was 

Huntsman, a sophisticated individual who has been 

immersed in the Church for much of his life. 

Hinckley had good reason to believe that Huntsman 

would have understood the language Hinckley used, and as 

the majority recognizes, Hinckley’s intent, which is based on 

such an understanding, is a critical element of plaintiff’s 

fraud claim. A reasonable juror could therefore not find that 

Hinckley made “a knowingly false representation of fact.” 

Orient Handel, 237 Cal. Rptr. at 672. Born in 1971, 

Huntsman was raised in a prominent family in the Church, 

and, as the majority points out, he considered himself to be 

“one of the Church’s most devout members.” Indeed, “he 

was raised in the LDS Church where he faithfully attended 
40 HUNTSMAN V. CORPORATION OF THE PRESIDENT

weekly meetings, watched biannual general conference 

broadcasts, tithed, and donated to the fast offering and 

missionary funds.” In 1990, Huntsman was ordained an 

Elder and began a two-year mission to Germany, and he has 

since “held numerous leadership and teaching assignments 

within the Church,” “including missionary zone leader and 

trainer (five times), Elders Quorum President, Ward Mission 

Leader, Stake Mission Presidency, High Council and Gospel 

Doctrine teacher (on and off for eight years).” Moreover, 

“Huntsman worked at Huntsman Corporation for 23 years, 

has run several businesses and currently owns and operates 

Blue Fox Entertainment.”

Huntsman was aware that the Church owned commercial 

ventures, and he kept up to date on Church affairs, as his 

practice was to “read the complete conference sessions in the 

Ensign Special Edition.” Indeed, as a young man, as early 

as in his 20s and 30s, Huntsman was curious about the 

Church’s use of tithing contributions, but he did not need to 

ask how his contributions were being spent “[b]ecause the 

answer at the time was provided in Church manuals, 

priesthood manuals, General Conference, Church 

magazines, and Sunday school.” In other words, Huntsman 

was familiar with the Church’s operations and publications. 

All this significantly weakens the majority’s analogy to 

a foreign language. And, in my view, the record is clear that 

Hinckley would have expected Huntsman—from a 

prominent family and himself a leader in the Church—to 

understand the terminology Hinckley used. If Huntsman’s 

background and sophistication are not enough alone, as 

discussed above, Hinckley explained in two statements in 

1991 and 1995 that the Church would set aside tithing funds 

as reserves. Thus, Huntsman should have understood that 

“earnings of invested reserve funds” referred to earnings on 
HUNTSMAN V. CORPORATION OF THE PRESIDENT 41

tithing principal. While Huntsman argues in his briefing that 

there is no evidence that he was aware of the 1991 or 1995 

statements, a brief is not a substitute for an affidavit in the 

face of a record that establishes otherwise. As mentioned 

earlier, in his deposition, Huntsman indicated that he would 

have been aware of at least the following material during his 

20’s and 30’s: “Church manuals, priesthood manuals, 

General Conference, Church magazines, and Sunday 

school.” Thus, there is evidence Huntsman would have read 

the 1991 and 1995 statements. 

In sum, Hinckley’s earlier statements show that the 

Church would set aside tithing funds as reserves. This, in 

addition to the financial records, makes clear that Hinckley’s 

2003 statement was truthful and not a misrepresentation. 

Combined with Huntsman’s sophistication and knowledge 

of the Church, there is also no question that Hinckley would 

have expected Huntsman to understand his statement, which 

entirely undermines any claim that Hinckley made a 

knowingly false representation. Again, this is not a question 

of what Huntsman understood, but of what Hinckley 

intended. Thus, no reasonable juror could conclude that the 

Church fraudulently misrepresented the source of the money 

used to finance the City Creek Mall project. 

I respectfully dissent as to Part IV.B.1 of the majority 

opinion.