FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JAMES HUNTSMAN,                           No. 21-56056

              Plaintiff-Appellant,       D.C. No. 2:21-cv-
  v.                                     02504-SVW-SK

CORPORATION OF THE
PRESIDENT OF THE CHURCH OF                  OPINION
JESUS CHRIST OF LATTER-DAY
SAINTS,

              Defendant-Appellee,

and

DOES, 1-10,

              Defendant.

       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 for-
profit 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, 

, 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 non-
movant’s favor. Anderson v. Liberty Lobby, Inc., 

 (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.” 

.
    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, 

 (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, 

, 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., 

 (10th Cir. 2002); see
10        HUNTSMAN V. CORPORATION OF THE PRESIDENT


also Jones v. Wolf, 

 (1979); Serbian E.
Orthodox Diocese for U.S. & Can. v. Milivojevich, 

 (1976). The doctrine is “a qualified limitation,
requiring only that courts decide disputes involving religious
organizations ‘without resolving underlying controversies
over religious doctrine.’” Puri, 

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

 (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, 

.                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, 

 (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.” 

 (quoting Cantwell v. Connecticut, 

 (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, 

,
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.” 

 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, 

 (1944); see also United States v. Rasheed, 

 (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, 

 (9th Cir. 2004);
Puri, 

 (“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,

)). 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 Church-
       affiliated 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, 

 (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., 

(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., 

 (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.,

 (Cal. 1997) (quoting Spinks v. Clark, 

 (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, 

. 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, 

 (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/Church-
of-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 Real-
Estate Empire (June 29, 2023), https://www.wsj.com/articles/mormon-
church-temple-spending-spree-utah-e167977f.
3
    

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 law 5 requires,
inter alia, a “misrepresentation (false representation,
concealment, or nondisclosure)” with “knowledge of
falsity.” Small v. Fritz Companies, Inc., 

(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., 

 (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.,

, 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-new-
york-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, 

. 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.