Does plaintiff's failure to plead a cause of action for breach of contract compel the court to conclude that she actually tried her case on a contractual theory?

For the foregoing reasons, I conclude that plaintiff actually tried her case on a contractual theory. Neither plaintiff's failure to plead a cause of action for breach of contract nor the parties' stipulation listing the issues to be tried compels a contrary result. "It is a time honored rule that where the parties and the court proceed throughout the trial upon a theory that a certain issue is presented for adjudication, the doctrine of estoppel precludes either party from thereafter asserting that no such issue was in controversy, even though it was not actually raised by the pleadings." (People v. Nahabedian (1959) 171 Cal.App.2d 302, 306, 340 P.2d 1053.) The same rational should preclude either party from asserting the issue was not in controversy because it was not enumerated in a stipulation designating issues. More fundamentally, defendants have never asserted that plaintiff did not try her case on a contractual theory. This court should not do so independently.